How Did It Ever Come to This?

Article excerpt

Once all but unnoticed by doctors, the specter of professional liability now clouds their lives.

"You cannot get a judgment against a doctor," declared a Medical Economics article in 1934. Malpractice insurance was something doctors carried, but assumed they wouldn't need. In fact, most doctors those days had never even heard of a malpractice lawsuit within their professional circle.

The first crack in the judicial barrier protecting doctors appeared in the 1940s. In the 10 years following World War II, the volume of malpractice claims doubled. By 1957, a doctor's chances of being sued were 1 in 7. It was not a matter of multiple claims being filed against a few suit-prone doctors; 86 percent of physicians had been hit with just one claim.

Also in 1957, plaintiffs' attorney Melvin Belli boasted in these pages about winning awards of $200,000 and up, calling them "an indication that justice is at long last being done:' By 1963, we'd seen the first $1 million payout. In 1965, when the courts decided that hospitals could be sued for malpractice, too, awards skyrocketed. By 1996, the typical (median) award was $568,000, but a handful of astronomical awards had boosted the average to nearly $2.3 million.

How did it come to this? Are doctors so terrible? Are lawyers the problem? What about patients? Insurers? The courts? In fact, everyone has played a part.

America's postwar change of attitude

Officially, malpractice has been defined as "a gross departure from accepted standards of practice." Since about the 1950sfrom the vantage point of the plaintiffs-it's been more like "anything a doctor does that's less than perfect," or even "any bad result."

As the country emerged from World War II, doctors could hardly have foreseen what was in store. Litigation had begun to increase in those postwar boom years, but that was largely because so many more people could afford medical care. Another key factor was the growing complexity of medicine. An abundance of new diagnostic and therapeutic procedures, along with new and more potent drugs, brought higher standards of care-but also new risks of injury.

The boom in medical knowledge also raised patient expectations. "Medicine has trumpeted the advances of technology and created the impression that it has the answers to all problems:' notes Philadelphia malpractice attorney James Lewis Griffith Sr. "Medicine oversold its act, causing patients to believe that the only explanation for a bad result is physician error. A more factual discussion of the difficulties and unknowns might have kept expectations at a more reasonable level."

The volume of claims rose steadily throughout the 1960s, then exploded in the early '70s: Four times as many suits were filed in 1971-1975 as in the previous 35 years.

Postwar prosperity and the rise of the middle class had created "a new confidence among the population, a growing assertiveness, and the willingness to question authority" notes Jeffrey O'Connell, professor at the University of Virginia Law School.

"In the early 20th century," O'Connell says, "a doctor could tell a young man that his wife had died of `complications: Today, we're all far more sophisticated. Even the most placid young man will question the doctor, demand a full explanation, and think about suing."

This shift in popular attitude was soon reflected in the courts.

Making it easier to sue physicians

Over the past 150 years, the courts have gone from hands-off to hands-on in physician-patient relations. In the mid-1800s, the government had almost nothing to do with private transactions between doctor and patient; it was strictly caveat emptor The government did guarantee the sanctity of contracts, and provided a forum (the courts) to redress negligence (malpractice).

In the late 19th century, the courts determined that a doctor's professional performance should be measured against the standard of care in his local community. …