Iatrogenesis and Medical Error: The Case for Medical Malpractice Litigation

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.

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.

Couch N.P. , The High Cost of Low-Frequency Events, New England Journal of Medicine 304(11):634–37 (March 12. 1981).

Steel K. , Iatrogenic Illness on a General Medical Service at a University Hospital, New England Journal of Medicine 304 (11):638–42 (March 12, 1981).

Couch , supra note 3, at 634.

Id. at 635.

Id. at 637.

Id.

Id.

Steel , supra note 4, at 638.

Id. at 641.

Id.

See generally King J. . The Law of Medical Malpractice in a Nutshell (West Publishing Co., St. Paul) (1977) at 136.

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.

Bardessono v. Michels, 478 P.2d 480, 484 (Cal. 1970).

See Gorovitz S. MacIntyre A. , Toward a Theory of Medical Fallibility, Hastings Center Report 5(6):13 (December 1975).

Couch , supra note 3, at 636; Steel , supra note 4, at 639.

Resier S.J. , Medicine and the Reign of Technology (Cambridge University Press, New York) (1981) at 156.

Id. at 157.

Gunther J. . The Malpractitioners (Anchor Press/Doubleday, New York) (1978) at 7, citing results of a study conducted by the Insurance Services Office.

Freidson E. , Profession of Medicine: A Study of the Sociology of Applied Knowledge (Harper & Row, New York) (1970) at 94.

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).

Prosser W. , Handbook of the Law of Torts, 4th ed. (West Publishing Co., St. Paul) (1971) §30.

Helling v. Carey. 519 P.2d 981 (Wash. 1974).

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”).

See generally Polan Law , supra note 14, at 97-119.

Beeck v. Tucson General Hosp. 500 P.2d 1153 (Ariz. App. 1972).

Darling v. Charleston Community Mem. Hosp. 211 N.E.2d 253 (Ill. 1965), cert. denied. 383 U.S. 946 (1966).

See 54 ALR 3d 258 for a list of cases.

See Furrow B. , Malpractice in Psychotherapy (1980) at 82.

Hoven v. Kelble, 256 N.W.2d 379 (Wisc. 1977).

Id. at 391 (footnote omitted).

Johnson v. Sears. Roebuck & Co., 355 F. Supp. 1065 (E.D. Wisc. 1973).

Id. at 1066.

Id. at 1067.

Cunningham v. MacNeal Mem. Hosp., 266 N.E.2d 897 (Ill. 1970).

Russell v. Community Blood Bank, 185 So.2d 749 (Fla. App. 1966).

See, e.g., Grudner , On the Readability of Surgical Consent Forms, New England Journal of Medicine 302(16): 900–02 (April 1980).

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. , 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).

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 BPL.” (at 173).

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.

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).

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).

See Havighurst C.C. , Medical Adversity Insurance: Has Its Time Come? Duke Law Journal 1975(6): 1233–80 (January 1975).