Volume 1

Medical malpractice : report of the Secretary's Commission on Medical Malpractice.

  • United States. Department of Health, Education, and Welfare. Secretary's Commission on Medical Malpractice.
Date:
1973
Catalogue details

Licence: Public Domain Mark

Credit: Medical malpractice : report of the Secretary's Commission on Medical Malpractice. Source: Wellcome Collection.

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    reasons, I believe that a National Board of Medical Licensure with national licensing should be insti- tuted and that the primary purpose of such a Board would be discipline. [The foregoing statement on medical licensure is concurred in by Richard M. Markus and Ella Strother. ] Legal Doctrines The Commission defeated by a single vote margin a motion that stated, “The Commission recognizes that some courts abuse legal doctrines such as informed consent, res ipsa loquitur, the discovery rule, and oral guarantees, to find strict liability in medical malpractice cases where negli- gence was not a factor and recommends that state legislatures take remedial action where such abuse of legal doctrines have occurred.” After this motion was defeated a substitute motion was introduced and passed by a two vote margin. I dissented on that substitute recommendation be- cause I believe that the pendulum has swung too far in favor of plaintiff's counsel in the malpractice area and courts are finding strict liability by using or abusing legal doctrines which were meant to apply only to negligence cases. The substitute motion, I believe, will open the flood gates of malpractice litigation even wider than at present, if that is possible. I believe that without some limitation placed by the state legislatures on these legal doctrines that the malpractice problem will surpass that of a crisis and become a national scandal. I foresee large numbers of physicians who are past the age of 55 years, who still may have many good years of practice remaining, retiring in order to escape the evil scythe of unwarranted and unjustified malpractice litigation. Many physicians were waiting for this Commission to give them some relief in order to stay in the practice of medicine. That relief has not been forthcoming. As a matter of fact, the physician, by the action of this Commission, will have to serve on more com- mittees, attend more meetings, do more reading, participate in more courses, spend more time in court and have less time for his patients. Even though the maker of the motion indicated that this was not his intention, I am afraid that the passage of this motion will have dire consequences for health care in the United States. Such groups as the American Trial Lawyers Association will argue, in states which are more conservative in applying such doctrines or where legislation is in effect to protect the physician from the unjustified claim or suit, that this Commission was in favor of change to liberalize the law in favor of the plaintiff and this, I believe, was not the intention but I am afraid would be the result. I am in favor of equity on both sides but the pendulum has swung too far and some rationality must be brought to bear before our entire health care system falters under the burden which will result ultimately in harming everyone who is or ever will be a user of health care facilities or providers. [The foregoing statement on legal doctrines is concurred in by Charles A. Hoffman. ] Consumer Involvement In Non-Federally Funded Research I dissent from the Commission recommendation that the same degree of consumer involvement be fostered by all appropriate non-federally funded health care delivery and research program because I believe that it will do the consumer more harm than good. I foresee that small family-funded and controlled foundations may decide to divert their health care dollars to other charitable causes if they have to permit someone else to decide where to give the family money in the health care field. I believe the same would hold true for corporations who now contribute to health care institutions including free clinics if they must permit other than the regular management to decide where those charitable dollars should be spent. Some may argue that the word “fostered” in the recommen- dation is not mandatory but, as so often happens, those who want it to happen will use the recom- mendation as though it were a requirement. I believe the consumer, who desires so much to set policy in every area today, would be hurt because certain groups who are now giving money for health care projects might decide to divert those funds elsewhere rather than relinquish control to outsiders. Therefore, I believe that this recommen- dation of the Commission will be more harmful than beneficial to all who benefit from philan- thropic contributions to health care either through direct care or indirectly by research.