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Malpractice law evolved via orthopedics
The specialty has played a major role in developing many of the key doctrines that are currently used in medical malpractice law.
Occasionally, in a complex subject such as medical malpractice, it is useful to look at the current issues within a broad historical context. In doing so, one discovers that orthopedic surgery has played a more important role in establishing legal precedent than any other medical specialty.
Here, we trace the evolution of important legal doctrines related to medical malpractice law, and examine how orthopedic cases contributed to their development. B. Sonny Bal |
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Expert testimony
One of the first cases dealing with medical malpractice law was that of Slater v. Baker and Stapleton that was tried in England, in 1767. It established the concept of a professional standard; physicians and surgeons were to be judged by “the usage and law of surgeons … the rule of the profession as testified to by surgeons themselves.”
The Slater case involved two doctors who were hired by a patient to change the bandages on a partially healed fracture; instead the doctors elected to re-fracture the leg to improve alignment and placed the leg in an unorthodox apparatus to achieve correction.
The unhappy patient sued; in support of his case, he produced other physicians similarly trained, who testified that the treatment used was contrary to standard medical practice.
While the case is of historical interest, it is noteworthy that the underlying concept of introducing expert testimony to support a claim against a professional is enshrined in modern law; specifically Federal Rule of Evidence 702 states: “If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise role of expert witness testimony in medical malpractice cases.”
Professional standard
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Another case important to the development of modern medical malpractice law is that of Pike v. Honsinger in 1898. The patient fractured his patella when a horse kicked him. He was treated with plaster and bandages. These came off prematurely, and the patient resumed work on his farm.
The outcome was poor in terms of fracture healing, knee stiffness, and torn ligaments. At issue was a delayed diagnosis of ruptured ligaments, the nature of treatment and the improper instructions given to the patient. The trial court sided with the defending doctor, but on appeal, a higher court reversed in favor of the patient based on expert testimony offered to support the patient’s arguments.
The timing of the case coincided with other interesting developments in medical education in the United States. The legal decision in Pike was published around the time when the medical school at Johns Hopkins University began requiring an undergraduate degree as a prerequisite for admission and when the Flexner Report revolutionized the teaching of medicine by calling on U.S. medical schools to enact higher admission and graduation standards and to adhere to scientific teaching and research.
The Pike court expanded the concept of a professional standard introduced in Slater, specifying that medical malpractice was to be judged by a professional standard of care consisting of knowledge, skill, diligence, and care. Recognizing that there were many uncertainties inherent in the healing arts, Pike also established immunity from liability for “an honest error in judgment.” In the decades that followed, these concepts would become the cornerstones of medical malpractice law in the United States.
Orthopedic surgery continued to play a role in shaping the common law in nearly every critical element impacting medical malpractice doctrine. Common law is derived and developed from the decisions of courts and other judicial tribunals, rather than through legislative statutes or executive actions; it is created and refined by judges.
Corporate liability
Another important medical malpractice precedential case was that of Darling v. Charleston Memorial Hospital, in 1965. In Darling a high school athlete suffered an amputation because of complications related to compartment syndrome and gangrene, from cast treatment of a lower extremity fracture at a hospital.
Prior to Darling, hospitals were not deemed to have a special obligation to assure the quality of the healthcare provided by independent medical staff. Darling changed that custom, and led to the creation and subsequent expansion of the concept of hospital corporate liability. The court held that a hospital could not limit its liability as a charitable corporation; instead, the hospital board of trustees had an oversight duty to assure the competency, qualifications, and proficiency of individual medical staff at the hospital.
Other important legal cases involving orthopedic injuries that expanded the Darling precedent include Johnston v. Misercordia Hospital and Elam v. College Park Hospital. These cases focused on the hospital’s failure to recognize that an individual staff surgeon may not have been competent to safely perform surgery. This concept was expanded yet further by Hidding v. Williams, in which the court held that an orthopedic surgeon with a history of alcoholism was required to disclose this history to his patient.
Informed consent
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Orthopedic surgery also played a major role in the informed consent doctrine in the landmark case of Canterbury v. Spence. The court began the Canterbury decision by observing “the record we review tells a depressing tale.” The patient underwent a lumbar laminectomy for a herniated disc; the surgeon had assured the family that the operation was relatively straightforward. The operation turned out be unexpectedly complex, and ended up with an incontinent and paralyzed patient. The lawsuit alleged an incomplete disclosure of the risks of surgery.
In acknowledging that there was no precedent in American law for sustaining a claim based on an inadequate disclosure of risks and alternatives, the court held:
“The average patient has little or no understanding of the medical arts, and ordinarily has only his physician to whom he can look for enlightenment with which to reach an intelligent decision. From these almost axiomatic considerations springs the need, and in turn the requirement, of a reasonable divulgence by physician to patient to make such a decision possible.”
Canterbury vs. Spence was decided in 1972 and ushered in the modern era of informed consent. These cases are representative of the important role that orthopedic cases have played in the evolution of the American law of medical malpractice.
Why orthopedics?
Why has the specialty of orthopedic surgery been so influential in shaping judicial decision-making? One can only offer many hypotheses to explain this phenomenon:
- Outcomes — Unlike other specialties, it is easy to measure orthopedic outcomes regardless of the performance of the surgeon. In a historical context, it was not feasible for the Pike court to select a case involving a chronic illness to establish the standard of care precedent. How could judges and juries decide what was the standard of care to treat chronic illness when there were no controlled clinical studies and half the medical schools in the nations were grossly inadequate? It was far easier for the court to examine whether an acute fracture of the patella had healed completely, and whether the leg functioned properly or not; both are concepts that lay people can understand readily. More than a century after Pike, there is still considerable disagreement in specialties over the definition of “standard practice.” In orthopedic surgery however, X-rays can readily provide a photograph of the surgeon’s work; and the failure to return to expected function can provide a reasonably clear measure of dissatisfaction.
- Communication — Much has been written about the poor communication skills of orthopedic surgeons. Whether or not these studies are valid and really measure a difference in communication skills between orthopedists and other specialists remains debatable. What is clear is that orthopedic surgeons most frequently deal with patients who are seen for the first time, with acute injuries, or well-localized elective problems, for which many of whom will undergo skeletal surgery. Hence the need to communicate may be more enhanced given the circumstances under which orthopedic surgeons see patients, and the expectations of some patients for a full and complete return to recovery. Good communications may still be the hallmark of orthopedic loss prevention, given the nature of this specialty.
- Personality — Although the hospital was held liable in the Darling case, the facts showed that the orthopedic surgeon was elderly, and underinsured. Should this surgeon have recognized his limitations? Does this continue to be an important liability issue given the competitiveness of the orthopedic surgeons, the fast pace of introduction of new technologies and emerging surgical techniques that have not been taught to many surgeons during residency training?
In summary, the historical evolution of medical malpractice law is derived from cases alleging medical malpractice, where the outcome of an orthopedic intervention was suboptimal. Examining the reasons why this one specialty has played such a major role in the development of key legal doctrines that are enshrined in modern medical malpractice law can be a useful and interesting exercise in learning about loss prevention in orthopedic surgery.
For more information:
- B. Sonny Bal, MD, MBA, is associate professor of hip and knee replacement in the department of orthopedic surgery, University of Missouri School of Medicine.
- Lawrence H. Brenner, JD, is on the faculties of orthopedics at Yale University and the University of Southern California and practices in Chapel Hill, N.C. Address all correspondence to Brenner at lb@lawrencebrennerlaw.com.