Hostname: page-component-cd9895bd7-8ctnn Total loading time: 0 Render date: 2024-12-24T01:44:03.406Z Has data issue: false hasContentIssue false
  • English
  • Français

Iatrogenesis and Medical Error: The Case for Medical Malpractice Litigation

Published online by Cambridge University Press:  27 April 2021

Barry R. Furrow
Get access Rights & Permissions [Opens in a new window]

Extract

Discussions of medical malpractice seem to end up at either of two extremes: the trial lawyer's view that injured patients deserve compensation, with the treating physician the best source; and the doctor's view that such suits unfairly penalize judgmental errors while raising the costs of practicing medicine. The parties to this debate make different assumptions about the nature, purpose, and likely impact of malpractice suits; as a result, the issues are muddied rather than clarified. This article suggests that, viewed in light of recent studies of iatrogenic illness in hospital settings, malpractice litigation may help rather than hinder the quality of medical care delivered.

latrogenesis, defined as the undesirable side-effects of medical interventions, is not a new phenomenon. The major study undertaken by the Department of Health, Education and Welfare in 1973 noted that a substantial percentage of adverse medical outcomes occur as the result of treatment. Others have concluded that many surgical deaths are avoidable.

Type
Medical Malpractice
Information
Law, Medicine and Healthcare , Volume 9 , Issue 6 , October 1981 , pp. 4 - 41
Copyright
Copyright © American Society of Law, Medicine and Ethics 1981

Access options

Get access to the full version of this content by using one of the access options below. (Log in options will check for institutional or personal access. Content may require purchase if you do not have access.)

References

Pocincki, L.S. Dogger, S.J. Schwartz, B.P., The Incidence of Iatrogenic Injuries, in Department of Health Education and Welfare, Appendix: Report of the Secretary's Commission on Medical Malpractice (DHEW Pub. No. (OS) 73–89, U.S. Gov't Printing Office, Washington, D.C.) at 50, 51.Google Scholar
A study, jointly sponsored by the American College of Surgeons and the American Surgical Association, concluded that 796 of the 1696 deaths or complications arising out of 1,493 surgical operations examined were avoidable. C. Child, The Critical Incident Study of Surgical Deaths and Complications 1973–1975 (1975), discussed in Study on Quality of Surgery Is Unveiled, Medical World News, pp. 24–25 (January 26, 1976); see also Brody, J., Incompetent Surgery Is Found Not Isolated, New York Times, January 27, 1976, at 1, col. 6. A study of the death rate in Los Angeles County during a doctors’ work slowdown confirmed a drop in the death rate, linked to the sharply reduced amount of elective surgery performed during the slowdown. See Death Rate in L.A. Fell in Slowdown by Doctors, Washington Post, October 20, 1978 at A6, col. 5.Google Scholar
Couch, N.P., et al., The High Cost of Low-Frequency Events, New England Journal of Medicine 304(11):634–37 (March 12. 1981).Google ScholarPubMed
Steel, K., et al., Iatrogenic Illness on a General Medical Service at a University Hospital, New England Journal of Medicine 304 (11):638–42 (March 12, 1981).Google ScholarPubMed
Couch, , et al., supra note 3, at 634.Google Scholar
Id. at 635.Google Scholar
Id. at 637.Google Scholar
Id.Google Scholar
Id.Google Scholar
Steel, et al., supra note 4, at 638.Google Scholar
Id. at 641.Google Scholar
Id.Google Scholar
See generally King, J.. The Law of Medical Malpractice in a Nutshell (West Publishing Co., St. Paul) (1977) at 136.Google Scholar
Gonzales v. Nork, No. 228566 (Calif. Super. Ct., Sacramento County, November 19, 1973), for excerpts, see Law, S. Polan, S., Pain and Profit: The Politics of Malpractice (Harper & Row, New York) (1978) at 215-45.Google Scholar
Bardessono v. Michels, 478 P.2d 480, 484 (Cal. 1970).Google Scholar
See Gorovitz, S. MacIntyre, A., Toward a Theory of Medical Fallibility, Hastings Center Report 5(6):13 (December 1975).Google Scholar
Couch, , et al., supra note 3, at 636; Steel, , et al., supra note 4, at 639.Google Scholar
Resier, S.J., Medicine and the Reign of Technology (Cambridge University Press, New York) (1981) at 156.Google Scholar
Id. at 157.Google Scholar
Gunther, J.. The Malpractitioners (Anchor Press/Doubleday, New York) (1978) at 7, citing results of a study conducted by the Insurance Services Office.Google Scholar
Freidson, E., Profession of Medicine: A Study of the Sociology of Applied Knowledge (Harper & Row, New York) (1970) at 94.Google Scholar
See Havighurst, C.C. Tancredi, L.R., Medical Adversity Insurance: A No-Fault Approach to Medical Malpractice and Quality Assurance, Insurance Law Journal 612:69–100 (February 1974), for a discussion of an attempt to couple financial incentives through insurance with risk disclosure. See generally Institute of Medicine. National Academy of Sciences, Beyond Malpractice: Compensation For Medical Injuries (1978).Google Scholar
Prosser, W., Handbook of the Law of Torts, 4th ed. (West Publishing Co., St. Paul) (1971) §30.Google Scholar
Helling v. Carey. 519 P.2d 981 (Wash. 1974).Google Scholar
See, e.g., Lundahl v. Rockford Mem. Hosp. Ass'n, 235 N.E. 2d 671, 674 (Ill. App. 1968) (“what is usual or customary procedure might itself be negligence”).Google Scholar
See generally Polan, Law, supra note 14, at 97-119.Google Scholar
Beeck v. Tucson General Hosp. 500 P.2d 1153 (Ariz. App. 1972).Google Scholar
Darling v. Charleston Community Mem. Hosp. 211 N.E.2d 253 (Ill. 1965), cert. denied. 383 U.S. 946 (1966).Google Scholar
See 54 ALR 3d 258 for a list of cases.Google Scholar
See Furrow, B., Malpractice in Psychotherapy (1980) at 82.Google Scholar
Hoven v. Kelble, 256 N.W.2d 379 (Wisc. 1977).Google Scholar
Id. at 391 (footnote omitted).Google Scholar
Johnson v. Sears. Roebuck & Co., 355 F. Supp. 1065 (E.D. Wisc. 1973).Google Scholar
Id. at 1066.Google Scholar
Id. at 1067.Google Scholar
Cunningham v. MacNeal Mem. Hosp., 266 N.E.2d 897 (Ill. 1970).Google Scholar
Russell v. Community Blood Bank, 185 So.2d 749 (Fla. App. 1966).Google Scholar
See, e.g., Grudner, , On the Readability of Surgical Consent Forms, New England Journal of Medicine 302(16): 900–02 (April 1980).Google Scholar
Doctrinal changes in tort law have altered the physician-patient relationship in the direction of fuller disclosure. See Novack, Changes in Physicians’ Attitudes toward Telling the Cancer Patient, Journal of the American Medical Association 241(9):897, 898 (March 1979). noting that in 1961, 12 percent of surveyed physicians generally told a patient about cancer diagnosis; by 1977, 98 percent reported a general policy of telling the patient. Whether the patients understand the information is another question. See Cassileth, B.R., et al., Informed Consent – Why Are its Goals Imperfectly Realized? New England Journal of Medicine 302(16):896 (1980). But see Annas, G.J., Editorial: The Goals of Informed Consent, Medicolegal News 8(3): 13 (June 1980).Google Scholar
See Judge Learned Hand's famous statement of the negligence calculus in United States v. Carroll Towing Co., 159 F.2d 169 (2nd. Cir. 1947). “[T]here can be no … general rule, when we consider the grounds for liability …. The … duty … to provide against resulting injuries is a function of three variables: (1) The probability [of harm]; (2) the gravity of the resulting injury …; (3) the burden of adequate precautions. Possibly it serves to bring this notion into relief to state it in algebraic terms: if the probability be called P; the injury, L; and the burden, B; liability depends on whether B is less than L multiplied by P: i.e., whether B<PL.” (at 173).Google Scholar
See O'Connell, J., Expanding No-Fault Beyond Auto Insurance: Some Proposals. Virginia Law Review 59(5):749–829 (May 1973) at 790–94, for an analysis of the connection between culpability and predictability of risk.Google Scholar
Twiss, , The Problem of Moral Responsibility in Medicine, Journal of Medicine and Philosophy 2:330, 365 (1977); Baram, , Technology Assessment and Social Control, Science 180:465 (May 1973).Google Scholar
Schwartz, Komesar, Doctors, , Damages and Deterrence: An Economic View of Medical Malpractice, New England Journal of Medicine 298(22):1282 (1978). See generally Calabresi, G., The Costs of Accidents: A Legal and Economic Analysis (Yale University Press, New Haven) (1970).Google Scholar
See Havighurst, C.C., Medical Adversity Insurance: Has Its Time Come? Duke Law Journal 1975(6): 1233–80 (January 1975).Google Scholar