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MedicoLegal
Consultants |
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Book Review Summer 2004
This book by Stanford law professor Lawrence Friedman, published early in 2002, is a monumental work, chronicling the enormous changes in theory and practice in the American legal system during the 20th century. Its three major divisions review the important areas of the law at the turn of the century, the enormous changes wrought by the Roosevelt administration and the New Deal, and the second major evolution-revolution in the law during the Reagan and post-Reagan years. Although it is not brand new, we have just gotten around to reading it. A worthwhile effort. Such a book covering the entire history and status of the American legal system in the 20th Century is well beyond the scope of a web site review devoted to medicolegal issues. Consequently, we shall concentrate on those areas most apposite to our concerns: health care and personal injury law. Friedman devotes an entire chapter called The Liability Explosion that includes the familiar aspects of tort law including medical malpractice and product liability. Friedman reminds us that tort law, largely personal injury, was a product of the 19th century's industrial revolution. For the first time, injury to man by machines, initially the railroads, became widespread and some mechanism for compensation of the injured was needed. The method evolved case by case, slowly. In the 19th century the law was essentially one of limitations, rendering it difficult for the workers to collect from the corporations. Gradually, the pendulum swung toward more equality and, many would argue, by the end of the 20th century, it had moved well over to the side of the plaintiff. However, in the early years the legal rule of fellow-servant often prevailed: no lawsuit against the employer and no recovery for an accident caused by another worker. Assumption of risk and contributory negligence were widespread concepts that mitigated against the victims. Some examples: the 1904 General Slocum excursion boat and the 1911 Triangle Shirtwaist Factory fires, both great disasters with much loss of life, resulted in little if any recovery for the victims families. The families of the Coconut Grove nightclub 1942 fire in Boston claiming 491 victims fared little better. Even the families of the 1912 Titanic passengers who drowned collected only modest sums: $50,000 or less for the regular passengers and $1000 each for the lives of the immigrants in steerage. Things got better, largely due to the rise of insurance companies, and with them, the workers' compensation system. There also was the growing belief that accidents were not an inevitable part of life and didn't "just happen," that they had a cause and negligence by an individual or corporation was responsible in the large majority of cases. Much of the latter was fostered by the scientific or at least organized study of factors leading to injury, clearly mandated by the growth of an automobile-based, industrialized economy and its resulting culture. Take workers' compensation. The despised fellow-servant rule met its demise gradually in the first decade or two of the century, promoted by congressional action in the railroad industry in 1908. Contributory negligence subsequently did not exclude recovery although it may lower compensation in proportion to the degree of negligence. However, New York pioneered the relief from the tort system entirely, instituting an early version of workers' compensation. By 1920 most states had insurance-based systems that compensated workers in many industries from job-related injuries. According to Friedman's analysis, both sides compromised: the worker gave up the slim chance to win big while the employer, in a no-fault system administered independently, outside the courts, liability was limited. The enormous success of the workers' compensation system must, however, be appraised from its almost confiscatory cost to employers in recent times, especially in California where employers began to move out of state and the politicians battles make headlines. Another old doctrine, privity, mandated the requirement to sue the one who sold you the defective product, not the manufacturer. After Justice Cardozo's famous decision in McPherson v. Buick Motor Company in 1916, the buyer could then sue the manufacturer directly. A later decisions by California state supreme court developed the concept of "absolute liability" by the manufacturer for a defective product, no proof of negligence required. The products liability cause of action continued to expand in the wake of these key judicial rulings. Drug manufacturers have been particularly hard hit in recent years by consumers actually and fraudulently injured by their products. And so to medical malpractice, a rare cause of action early in the 20th century. In fact there were only 8 such cases in New York City in 1910. By mid-century such actions were much more common and today they are one of the leading types of tort cases, so much so that doctors in many states are threatening strikes and practice limitations to avoid the high cost of malpractice premiums. The marked increase in medical malpractice probably was fostered by the general attitude that a physician owes his patient a detailed explanation of medical diagnosis and treatment, especially side-effects and risks, so-called informed consent. An unusual notion prior to World War II, the public revulsion with the Nazi's medical experiments that received so much publicity at the Nuremberg trials undoubtedly fostered public acceptance of this concept. The other major factor in promoting the growth of medical malpractice could be called the era of rising expectations: with the increasing scientific application to medicine and high tech cures and control of chronic disease, expectation of perfect results became widespread. In a way, medicine became a victim of its own success. Death and disability that were once considered inevitable parts of life became intolerable by the end of the century. A less than perfect baby, for example, might generate an award of millions, even in genetic cases, and often if negligence and causation were only tenuous. Perhaps the largest factor behind the 20th century liability explosion is the application class action lawsuits to mass toxic torts. With a more aggressive plaintiff's bar and increasing numbers of lawyers looking for action, the result is inevitable: more and more lawsuits, usually against large manufacturers. Think of asbestos, the Dalkon shield, breast implants, diet drugs, cigarettes, automobile defects: almost every consumer product is fair game. The traditional role of courts has often been supplanted by legislative action and regulatory agencies. Since the Roosevelt administration, the federal government has largely taken the lead and the states have added to the regulatory environment. While the many faces of the law have
obviously evolved over the past 100 years or so, the concern for
individuality, privacy, and consumer protection is among the most
impressive. Friedman's chronology documents this well. |
