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The Malpractice Dilemma
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17070 |
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Section : |
MODERN THOUGHT
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| Issue
Date : |
8 / 1990 |
3,457 Words |
| Author
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James R. Venaina and Susan A. Burns
James R. Vevaina, M.D., is an authority on medical law, and
author of Legal Aspects of Medicine. He is affiliated with the
Long Island Jewish Medical Center. Susan A. Burns is a free-
lance writer on various subjects including medical law. |
The thorny medical-legal issue of medical malpractice has become a national dilemma. In 1989, the New York Times published data from the center for National Statistics which reported the toll taken by malpractice suits against doctors and hospitals to be in the region of twelve billion dollars a year. The question that no one has yet been able to resolve is, "What should be done about malpractice?"
Until 1903, it was almost impossible for a patient to win a malpractice case in the United States against a doctor. Doctors were considered members of a noble profession, and unless they were involved in crimes they were considered immune from civil law suits. In those days, gross mistakes made by doctors were buried with their patients. Furthermore, complicated medical issues were outside the scope of the average layperson. The physician by virtue of his position had the patient in his confidence. Most operations were done behind closed doors, and bad results were blamed on everything but the lack of skill and knowledge of the doctor.
In 1903, the Supreme Court of Nebraska wrote an opinion making it public knowledge that plaintiffs in medical malpractice actions had extreme difficulty in getting a doctor to testify against another doctor. In 1956, the Supreme Court of Kentucky openly acknowledged that there was a "conspiracy of silence" among doctors. The Court stated, "It is well known that there is a notorious unwillingness of members of the medical profession to testify against one another. This imposes an insuperable handicap upon the injured plaintiff who is unable to obtain the necessary professional proof to meet the standards of the law." This acknowledgement by a high court was open recognition of the truth that malpractice was hard to prove.
Slowly the courts awoke to the fact that some equalization of the situation was necessary. Many patients who were injured had been under anesthesia or were unable to decipher why their medical treatment had left them injured or otherwise harmed. The courts also realized that a doctor who was "let off the hook" was likely to make the same mistakes again.
Breaking The Conspiracy Of Silence
The long-standing unspoken conspiracy of silence among doctors was broken by the famous attorney Melvin Belli. The story of the first time that cooperation was obtained between feuding attorneys and doctors is related in the first chapter of the medical text entitled Legal Aspects of Medicine, finally
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