Persistence Is Not Always a Virtue: Tort Reform, Civil Liability for Health Care, and the Lack of Empirical Evidence
✍ Scribed by Stephen Daniels; Joanne Martin
- Publisher
- John Wiley and Sons
- Year
- 1997
- Tongue
- English
- Weight
- 137 KB
- Volume
- 15
- Category
- Article
- ISSN
- 0735-3936
No coin nor oath required. For personal study only.
✦ Synopsis
In 1844, a writer for the Boston Medical and Surgical Journal warned that qualified physicians were constantly liable to vexatious suits instituted by ignorant and unprincipled persons. '' In 1853, the Western Journal of Medical and Physical Sciences reported that malpractice suits occur almost every month in the year and everywhere in our country.'' . . . As early as the 1840s, the frequency of suits in some parts of the country had filled doctors with a mixture of anger, panic, and confusion. The suits and the alarm increased as the decades passed. Frank Hamilton, a New York physician, claimed that between 1833 and 1856 suits for malpractice were so frequent in the Northern states'' that many men abandoned the practice of surgery, leaving it to those who, with less skill and experience, had less reputation and property to lose.'' By 1860 John Elwell, a physician and a lawyer who wrote a book on the subject, could claim that ``(t)here can hardly be found a place in the country where the oldest physicians in it have not, at some periods in their lives, been actually sued or annoyingly threatened.'' 1
These remarks should give us pause in looking at the current ``crisis'' and its image of the civil justice system. Our interest is in that image and the question of why it persists in the face of little or no systematic, empirical verification. The question is an interesting but relatively new one, arising only with the development of an empirical literature on the civil justice system generally and on the part of the system involving professional liability in the health care arena more specifically.
Curiously, contemporary complaints about professional liability point to a better past as a golden age to use as a standard for measuring the current problem. Typically, the rhetoric is couched in terms of a crisis and it is built upon a story line of societal decline. This change for the worse, in turn, serves as the impetus for immediate and fundamental reform. For instance, in his address to the 52nd Annual Meeting of the Central Association of Obstetricians and Gynecologists in 1984, Dr. Kenneth Vander Kolk took as his theme the title of the 1954 Peggy Lee song, Is That All There Is?'' He told his colleagues that we practice in a cage of sorts, the bars of which are made from an alloy of legal scrutiny, legal harassment, legal endeavors, some legal expertise, and a good deal of legal omnipotence.'' 2 Physicians, he claimed, are an easy prey for the hustling attorney who initiates a lawsuit.'' 3 Using 1954 as a point of comparison, Vander Kolk bemoaned the loss of innocence of an earlier time when an obstetrician-gynecologist's cost of business (including liability insurance) was dramatically lower. There was practically no malpractice. There was no Medicaid, no Medicare, no health maintenance organizations, no preferred provider organizations, no diagnosis-related groups, and most patients paid in cash. These were the good old days.'' 4 In his view, ``no longer can anything less than a perfect result in patient care be considered to be an act of God, as it was in 1954. '' 5 As these remarks show, the past is created or imagined as an idealized standard and then used to evaluate a present constructed in such a way as to fail that evaluation. The excerpt from DeVille's book should make us skeptical of that imagined past. The findings of recent empirical research should make us skeptical