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Contributory negligence
Torts- Negligence and strict liability (L2207)
Makerere University
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INTERNATIONAL JOURNAL OF COSMETIC SURGERY and AESTHETIC DERMATOLOGY Volume 5, Number 1, 2003 © Mary Ann Liebert, Inc.
Law and Medicine
Rebirth of Assumption of the Risk and Contributory
Negligence in Medical Malpractice Actions
FILLMORE BUCKNER, M., J.
93
INTRODUCTION
I
N THE EARLY 1970 S, medical technical innova- tion, liberal judges and juries, loss of the lo- cality law and charitable immunity, relaxation of the statute of limitations, the adoption of dis- covery rules, increased reliance on medical care, fewer long-term physician–patient rela- tionships, and unrealistic patient expectations combined to create what came to be known as the 1970s malpractice crisis. The result was threefold: malpractice insur- ance premiums increased by multiples,* the number of cases brought against physicians in- creased dramatically over the artificially de- pressed number brought between 1870 and 1945,** and the size of the awards also in- creased substantially. Some malpractice insur- ers, unsure of where the increasing spiral of awards was going to end, and worried about taking a loss in what was generally a small por- tion of their overall business, began to drop medical malpractice coverage. The physician now faced the multifaceted problem of in- creased liability premiums, an uncertain source of liability insurance, increasing numbers of malpractice suits, and the ever-growing scope of awards. In response, organized medicine called for a massive tort reform campaign.
Although we talk about the tort reform movement of 1975–1976 as a countrywide movement, because malpractice was a state court issue, each state medical society essen- tially ran its own campaign. In most states, the state medical society was allied with the in- surance industry or, at least, the local liability carriers in its campaign. There is a serious ques- tion as to how much help was really rendered by the insurance industry. The commercial car- riers had different interests from those of the medical societies. The medical societies wanted to decrease the frequency and severity of the malpractice suits. The insurance companies wanted to increase their ability to assess future risk accurately, and to distribute certain high- risk pools evenly throughout the industry. Those commercial carriers with the financial resources to resist the previous losses would make up the losses with increased premiums in a timely manner. The malpractice carriers es- timate that it takes about 5 years before their claims, settlements, and judgments can be fi- nalized. Thus, the carrier’s challenge was cal- culating the future rate of increase in losses so that the company could keep future premiums high enough to maintain a positive cash flow. Because the carrier’s profit was based on a fixed percentage of premiums, it had no incentive to
Clinical Professor, Department of Obstetrics and Gynecology, University of Washington School of Medicine, Seat- tle, Washington. *From 1960 to 1972 premiums for the lowest risk ratings increased an average of 600%; those for the highest risk ratings increased 900%; hospital premiums increased an average of 750%. **From the late 1960s to 1972 the number of cases increased at a rate of about 12% per year.
decrease either the severity or number of suits and thus lower malpractice insurance premi- ums. The argument can also be made that the insurance lobby was, and is, one of the most powerful and effective lobbies in American politics. Therefore, if the insurance lobby was fully behind the tort reform movement as part- ners-in-fact with the physicians, the tort reform movement would have been a more uniform national movement and would have achieved far more extensive and effective results than were accomplished in the 1975–1976 reform movement. Although many state legislatures demanded some quid pro quo for support,†most state so- cieties walked away from their legislature con- ferences with promises of helpful legislation. The programs of tort and insurance reforms in- troduced by the physician/liability insurer coalition are listed in Table 1. However, in ret- rospect, the legislation the societies managed to
get enacted appears to be more show than sub- stance. The tort reforms introduced by the physicians in their 1975–1976 campaign had lit- tle effect on either the number of suits or the damages awarded. First, many of the reforms enacted were overturned as unconstitutional under the state constitution‡by the courts in about one-half the jurisdictions. Second, the only reforms found to reduce the amounts of awards were the caps on damages and the collateral source rules. The only reforms that reduced the number of claims was the short- ening of statutes of limitations and the intro- duction of statutes of repose (limits on discov- ery).§ Most of the reforms had no effect. Binding arbitration reduced the amount of in- dividual awards but increased the number of claims so that the net effect was to increase the amount paid out in damages. Review panels were found merely to increase the cost of liti- gation.
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†Many states required an increase in physician quality control through their medical quality assurance boards. In theory, the number of malpractice claims should be lower in states with active disciplinary boards. However, Dan- zon reports claim frequency increased with the number of disciplinary actions. This probably means that disciplinary boards are taking their investigative stimulus from the claims made rather than taking any presumptive or prophy- lactic actions. ‡Kinney states that all attempts to declare such reforms unconstitutional under the Federal Constitution have failed.(2) §Danzon claims a reduction of 1 year in the statute of limitations results in an 8% (average) drop in the number of claims and a 6–7% drop in the number of paid claims.(3)
TABLE1. FIRST-GENERATIONTORTREFO RM(1)
Original Reform
Aimed at size of recoveries (severity) Aimed at plaintiffs’ difficulty (or costs) of winning Caps on awards Expert witness requirements Periodic payments of damages Informed consent limits Collateral source offset Professional standard of care reasserted Joint and several liability Res ipsa loquitor restrictions Punitive damage limits Statute of frauds for medical promises Ad damnum clauses restricted
Aimed at the number of suits (frequency) Aimed at functioning/cost of the judicial process Pretrial screening panels Mediation Arbitration Notice of Intent to sue Statutes of limitations Precalendar conference required Attorney fee control Preferred scheduling Certificate of merit Costs awardable
Insurance reform Patient compensation funds Joint underwriting associations Limit on insurance cancellation Mandates for liability coverage Reporting requirements
bar to plaintiff recovery. Plaintiff negligence oc- curring subsequent to the defendant negli- gence would only serve to mitigate the plain- tiff’s damages and not bar some degree of recovery. Leadingham v. Hillman(7)illustrates the principle in a medical malpractice case. The plaintiff suffered a broken arm and sought care from the defendant physician. The defendant negligently set the arm. The patient refused to allow further surgery or treatment. The defen- dant physician invoked the affirmative defense of contributory negligence. The court held that the patient’s refusal to allow therapy was not a bar to recovery but that the plaintiff’s recov- ery would be reduced by an amount commen- surate with plaintiff’s refusal’s contribution to damages. Some other relatively minor changes came from the courts, but the major change came not from the courts but from state and federal leg- islatures. The logical way to handle the prob- lem of the combined negligence of the patient and the physician would be to divide the dam- ages proportionally between the two parties. The courts were adamant in their refusal to do so. This refusal was probably due in part to the judiciary’s reactionary attitude to change, but it also must be credited to their mistrust of the jury’s apportionment of damages and the judi- ciary’s ultraconservative bias toward noncom- pensation. Although several states had special comparative negligence clauses in labor and railroad acts, in 1910 Mississippi became the first state in the union to pass a general com- parative negligence act. Nebraska, Wisconsin, and Georgia followed soon after, and North Dakota passed its statute in 1941. The federal government adopted comparative negligence in the Federal Employers’ Liability Act of 1910, and later in the Jones Act and Merchant Ma- rine Act. In most states, however, the concept of contributory negligence continued unabated in state courts until after World War II. About a dozen states now have a pure comparative negligence law (damages divided in propor- tion to negligence 99–1%). The concept of con- tributory negligence being a complete bar to plaintiff’s recovery continues unabated in Al- abama, Maryland, North Carolina, Virginia, and the District of Columbia. The remainder of the states have a modified comparative negli- gence law of some sort. Many of the modified
comparative negligence laws deny the plaintiff recovery if the plaintiff’s liability exceeds the defendant’s or reaches a ceiling percentage of the negligence (fault). Since World War II, courts have not looked favorably on the defense of contributory negli- gence in medical malpractice cases. First, the physician has been considered a learned pro- fessional and the patient a poorly informed layperson with little knowledge of what a rea- sonable approach to behavior in the face of symptoms or findings would be. Los Alamos Medical Center v. Coe(8)is an early example of this type of case. Second, the patient is usually inactive at the time of treatment (i., under the sole control of the physician). Boss Ambulance Co. v. Boll(9)and Steele v Woods(10)are often- cited cases that demonstrate this principle. Fi- nally, many of the more liberal judiciaries of the postwar era considered contributory negli- gence to be an outdated, 19th century doctrine. More recently, and perhaps stimulated by the malpractice crisis of the 1970s and the mal- practice insurance crisis of the 1980s, and cer- tainly influenced by the information revolu- tion, courts have made few but significant changes in how they look at contributory neg- ligence cases. First, legal commentators have noted that the medical malpractice plaintiff of today is a far more sophisticated individual than the plaintiff of 1870, 1920, or even 1970.(11) Knowledge of the danger signs of cancer, stroke, appendicitis, and myocardial infarc- tion, among other medical conditions, has be- come common courtesy of the American Can- cer Society, the American Heart Association, TV, and radio. The adoption of the doctrine of informed consent has transferred a share of the medical decisionmaking to the patient. Mur- phey(11) also cites increased patient con- sumerism, resulting in modern patients exert- ing much more control of health care decisions than ever before as a factor influencing court de- cisions. In her view, this increased consumerism has completely altered the traditional physi- cian–patient relationship. Through the Internet, an interested layperson has access to exactly the same sources of information as the physician. Because of this increased general knowledge, in- creased voice in health care decisions, and un- limited access to health care information on the part of patients, courts have taken judicial no-
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tice of the patient’s potential for negligence in medical malpractice cases.(12)This same reason- ing has led courts to consider contributory neg- ligence in cases in which the plaintiff’s negli- gence has occurred subsequent to that of the physician. This is a throw back to 19th century contributory negligence in the first state to pass a comparative negligence statute.(13) Comparative negligence, and in particular the pure comparative negligence statutes, have come under fire as well. First, no state has adopted a pure comparative negligence statute since the mid 1980s. Three states that had adopted pure comparative negligence statutes adopted a new modified comparative negli- gence standard.§In addition, several pure com- parative negligence states have adopted the doc- trines of sole proximate cause or superseding cause to rule that a defendant was not legally responsible for the plaintiff’s injury.(14)It is also significant that one state that had consistently refused to allow a physician a successful con- tributory negligence defense now has allowed the defense.(15)At least one commentator has also argued that comparative negligence is in- applicable to exemplary or punitive damages.(16) These changes argue that the legal system, through the application of legal policy, is mak- ing a decision as to whether a particular de- fendant physician should be held legally re- sponsible for a specific patient’s injury. The courts are finding rules and making excep- tions to make sure the slightly negligent physician does not have to pay the greatly negligent patient a very large sum of money. This move by the courts, albeit slow and ir- regular, appears to foretell a far more effective tort reform than any of those lobbied for by organized medicine in the 1970s.
REFERENCES
- Buckner, F.: An Overview of the History of Medical Malpractice. Hartford: Graduate Group, 2002.
- Kinney. Malpractice reforms in the 1990s: Past disap- pointments, future success? J Health Politics, Policy and Law 1995;20(1):99–135.
- Danzon. The frequency and severity of medical mal- practice claims. New evidence, law and contemporary problems 1986;49(2):57.
- Baird v. Morford , 29 Iowa 531 (1870); West v. Martin , 31 Mo. 375 (1861); Wilmot v. Howard , 39 Vt, 447 (1867).
- §463 Restatement, Second, Torts.
- Geiselman v. Scott , 25 Ohio 85 (1874).
- Leadingham v. Hillman , 5 S.W 1044 (Ky 1928).
- Los Alamos Medical Center v. Coe , 275 P 175 (N. 1954).
- Boss Ambulance Co. v. Boll , 208 So 308 (Fla. 1968). Steele v Woods, 327 S.W 187 (Mo, 1959).
- Steele v Woods , 327 S.W 187 (Mo, 1959).
- See , Murphey, Contributory Negligence in Medical Malpractice, 17 U. Dayton Law Review 151 (1991); Fraley, The Evolution and Status of the Contributory Negligence Defense to Medical Malpractice Actions in North Carolina, 16 Campbell Law Review 103 (1994).
- See , Chudson v. Rata , 548 A 172 (Md. App 1988); cert. denied 552 A 894 (Md. 1988).
- See , Reikes v. Martin , 471 So 385 (Miss 1985). See also , Sorina v. Armstrong , 554 N.E 943 (Ohio,
- rev’d. On other grounds ; Grippe v. Montazee , 705 S.W 551 (Mo. 1986)
- See , Edison v. Reproductive Health Services , 863 S.W 621 (Mo. 1993); see also , Keomaka v. Zakaib , 811 P 478 (Haw. App 1991).
- McGill v. French , 424 S.E 108 (NC 1993).
- See , Greytok, Unexpected Tort Reform the Rebirth of Contributory Negligence, 46 Baylor Law Review 297 (1994).
Address reprint requests to: Fillmore Buckner, M., J. 9119 Fauntleroy Way, S. Seattle, WA 98136
E-mail: fillbuck@u.washington
MEDICAL MALPRACTICE ACTIONS 97
§Arkansas, Illinois, Michingan.
Contributory negligence
Course: Torts- Negligence and strict liability (L2207)
University: Makerere University
