The Evolution of Medical Malpractice

AUGUST 29, 2019
MD Magazine

Simon D. Murray, MD: The concept of malpractice has evolved over the years. Even in my lifetime, I’ve seen changes in what’s considered malpractice and what isn’t.

Glenn Bergenfield: Sure.

Simon D. Murray, MD: How did this issue of malpractice even evolve? Has it come out of old English law? Where did it start?

Glenn Bergenfield: Yes, it started even prior to that. I think the first mention of it that I’m aware of was about 4000 years ago in the Code of Hammurabi, and there are about 280 laws in there. One of them relates to doctors. If a doctor harms a patient, the doctor should be punished, in the words of that code. They didn’t make a big distinction between criminal problems and civil wrongs. That’s how it started.

My personal opinion is that the Hippocratic oath is also referring to that, in part. It’s the key, defining characteristic of the doctor-patient relationship. The first thing it says is, “Do no harm.” It doesn’t say, “First thing, heal.” It doesn’t say, “First thing, try your hardest” or “Do the best you can.” It says, “First thing, do no harm.” Don’t make things worse than they already are. There’s a recognition that bad things happen to the human body and in life, and doctors are not supposed to make it worse. I think that’s a recognition of the possibility that a doctor doing the difficult things that doctors do can make things much worse.

Simon D. Murray, MD: Yes. What’s interesting to me is that in the time of ancient Greece, physicians were held in such high esteem. They were viewed as almost godly, if I may.

Glenn Bergenfield: That’s changed now? You think that’s no longer so?

Simon D. Murray, MD: I think it has certainly changed, but it’s hard to imagine they would have instituted laws of malpractice against their gods at the time, although I know they did.

Glenn Bergenfield: Right. I think they talk about Apollo and how, at the time of Hippocrates, they asked for Apollo’s blessing.

Simon D. Murray, MD: Charlatans have been around forever, and the public should be protected against them. I certainly understand that.

Glenn Bergenfield: Sure. It’s still true, at times.

Simon D. Murray, MD: Can you tell me about the way malpractice is practiced in the United States versus how it’s done in other countries? Do you think there are better ways that medical malpractice cases be adjudicated?

Glenn Bergenfield: There’s a lot of waste and inefficiency in our system. There are a lot of cases that are brought that are not meritorious, because we lawyers do the best we can to understand the medicine. That said, I’m a big fan of the jury trial system, both for medical malpractice cases and legal malpractice cases. That’s our system. It’s in our Constitution. About 80% of the time, the juries do a spectacular job. I’ve tried cases to judges occasionally. I avoid that whenever I can. One person sitting and listening, I think, doesn’t do nearly as good a job at resolving what actually happened as a group of people. The juries work well. I know doctors don’t think that. You may not think that, Simon, but that’s my take on it after 35 years of trying jury trial cases.

Simon D. Murray, MD: Yes, it is our system. That’s who elects our president, our current president included. However, one hears about these extraordinary cases on the news, like a woman who lost her psychic powers after getting an MRI [magnetic resonance imaging] scan at Temple University, sued, and won. There’s also this woman who burned herself on coffee and sued McDonald’s. That’s not medical malpractice, but you hear about these extraordinary awards being paid out, and it makes us somewhat skeptical about the whole process.

Glenn Bergenfield: I think there are 2 answers to that. At the margins, there are always odd things happening. There are plane crashes, even though generally, flying in a plane is safe. That’s how I look at some of these cases that come out so crazy. The other thing is that they’ve been weaponized by our political environment. As for the McDonald’s case, if you actually saw how the case came out and what it was actually about, you wouldn’t be stunned that the jury was furious at McDonald’s for serving such hot coffee thousands of times, burning thousands of people. All that woman wanted in that case was, “Could you pay my medical bills?” She’d been in a hospital for 8 days. It was not an insignificant burn; it was a horrifying burn. It involved skin grafts, and McDonald’s offered her $800. Her bill was about $10,000 or $20,000, and then she sued. McDonald’s had been warned that their coffee was too hot, and it was burning people, but they thought, “People like hot coffee. It’s good for marketing.”

Simon D. Murray, MD: We don’t know all those details, though. That’s not what you hear.

Glenn Bergenfield: Right, because it’s been weaponized by Fox News and others with an agenda to say, “Tort reform has to happen. The jury trial system is out of control; juries are terrible.” They’re not. I can tell you from the front lines that they’re not.

Transcript edited for clarity.

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