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Medical Malpractice Law, Morality and the Culture Wars

2006; Taylor & Francis; Volume: 27; Issue: 1 Linguagem: Inglês

10.1080/01947640500533275

1521-057X

Frank M. McClellan,

Medical Malpractice and Liability Issues

Click to increase image sizeClick to decrease image size Notes † Professor of Law, Beasley School of Law, Temple University. I would like to express my appreciation to Dean Peter Alexander and Professors Marshall Kapp and W. Eugene Basanta for inviting me to participate in this symposium and for their gracious hospitality during the course of the proceedings. I would also like to my thank colleague Phoebe A. Haddon, Professor of Law, Temple University, for reading earlier versions of this article and offering many helpful critical comments. 1For an insightful and provocative discussion of the culture wars, particularly with respect to the involvement of religious organizations, see Noah Feldman, A Church-State Solution, N.Y. Times Mag., July 3, 2005, at 28, available at 2005 WLNR 10446246 (describing the historical separation of church and state and arguing that the failure of both to accept America's rules for religious expression and public money in religious life is at the heart of the culture wars). 2Legalization of gay marriage served as the lightening rod for an intense public battle over morality and law, allegedly motivating evangelicals to turn out to vote in large numbers. See Elisabeth Bumiller et al., The 2004 Elections: A Look Back—The Campaign, N.Y. Times, Nov. 4, 2004, at A1, available at 2004 WLNR 6562511. 3In the 2004 Presidential election, the electorate located on the northeast and west coasts of the United States voted Democratic, while the states in between voted Republican, making most coastal states blue or liberal and the middle states red or conservative. See CNN.com, Election Results, at http://www.cnn.com/ELECTION/2004/pages/results/president/ (last visited Sept. 5, 2005). The division manifested itself clearly in the 2000 election and left much bitterness in its wake. One commentator observed: “The disputed election of 2000 left a lasting scar on the nation's psyche. A recent Zogby poll found that even in red states, which voted for George W. Bush, 32 percent of the public believes that the election was stolen. In blue states the fraction is 44 percent.” Paul Krugman, Democracy at Risk, N.Y. Times, Jan. 23, 2004, at A23, available at 2004 WLNR 4783298. 4 See Mark A. Hofmann, Views on Tort Law Divide Candidates, Bush, Kerry Reform Proposals Diverge, Bus. Ins., Oct. 11, 2004, at 1, available at 2004 WLNR 1752096; Richard A. Oppel, Jr., Bush Enters Fray Over Malpractice, N.Y. Times, Jan. 17, 2003, at A24, available at 2003 WLNR 5197952. 5 See, e.g., James Dao, A Push in States to Curb Malpractice Costs, N.Y. Times, Jan. 14, 2005, at A21, available at 2005 WLNR 521370. 6After the 2004 election, key Republican strategists credited Mr. Bush's victory to the turning out of more Republican voters, many of whom were evangelicals. See Bumiller et al., supra note 2. 7George Lakoff, Don't Think of an Elephant! 6 (2004) [hereinafter Elephant]; George Lakoff, Moral Politics: How Liberals and Conservatives Think 65-140 (2d ed. 2002) [hereinafter Moral Politics]. 8 See Pew Research Ctr. for People & Press, Voters Liked Campaign 2004, but Too Much “Mud-Slinging” Moral Values: How Important? (2004), available at http://people-press.org/reports/display.php3?ReportID=233 (finding, when pitted against the war in Iraq and terrorism, voters considered moral values a more important voting criterion). 9 See Dan Gerstein, Why the Democrats Are Losing the Culture Wars, Wall St. J., Apr. 12, 2005, at A22. 10 Id. 11Feldman, supra note 1, at 30. 12Associated Press, Church Split in Dispute over Bush, N.Y. Times, May 11, 2005, at A12, available at 2005 WLNR 7396952; Editorial, Mixing of Politics and Religion Is in Dangerous Territory, Asheville Citizen-Times, May 10, 2005, at 4, available at 2005 WLNR 7418420. 13Laura Goodstein, Air Force Chaplain Says She Was Removed for Being Critical, N.Y. Times, May 15, 2005, at 22, available at www.nytimes.com/2005/05/15chaplain.html. 14 See generally Jay Greene et al., Culture Wars Hit Corporate America, Bus. Week, May 23, 2005, at 90 (discussing the dilemma faced by corporations in deciding whether to take a position on social issues). Although Microsoft's ultimate support for the anti-discrimination legislation won praise from its employees and gay rights groups, it drew threats from local religious organizations. “Reverend Ken Hutcherson, the local preacher who originally pressured Microsoft to drop its support for the legislation, plans to tap the broad network of like minded religious conservatives to lean on the company. …” Id. at 92. 15Sarah Kershaw, In a Reverse, Microsoft Says It Supports Gay Rights Bill, N.Y. Times, May 7, 2005, at A10, available at 2005 WLNR 7178418; see also Sarah Kershaw, Microsoft Weighs Reversal on Gay Rights, Gates Says, N.Y. Times, Apr. 27, 2005, at A14, available at 2005 WLNR 6559334. 16 See Steven Kull, Program on Int'l Policy Attitudes, U.S. Public Beliefs and Attitudes About Iraq (2004), available at http://www.pipa.org/OnlineReports/Iraq/Report08_20_04.pdf (discussing polls taken from 2003 to 2004 finding that a majority of the public persisted in believing Iraq had weapons of mass destruction and had given substantial aid to Al Qaeda; moreover, even after the 9/11 Commission Report, a substantial number of people retained these beliefs). Id. at 5. 19 Id. at 5. 17Elephant, supra note 7, at 6; Moral Politics, supra note 7, at 65-140. 18Elephant, supra note 7, at 4-6. 20 Id. at 13. 21 Id. at 19. 22Moral Politics, supra note 7, at 35-36. 24 Id. at 780. 23464 F.2d 772 (D.C. Cir. 1972). 25 See Dennis Roddy, Autopsy Proves One Thing: Schiavo's Dead—Now, Pittsburgh-Post Gazette, June 18, 2005, at A2. 26 See Thomas H. Koening & Michael Rustad, In Defense of Tort Law 6-8 (2001) (arguing that the public never got an accurate and complete presentation of the facts from the media, and that, in particular, McDonald's had numerous complaints of coffee burns prior to this accident and the plaintiff suffered severe burns that necessitated multiple surgeries). 27My experience teaching law students and lecturing to professionals in health care and law, as well as my review of academic literature and popular media, has convinced me that similar cognitive barriers exist regarding the debate over the medical malpractice crisis. Regardless of what empirical studies show concerning increases in the number of tort cases, verdict size, or claim success rate, people retain their beliefs about whether the tort system has produced a medical malpractice crisis. 28Frank McClellan, Medical Malpractice: Law, Tactics and Ethics ix (1994). 29Comm. on Health Literacy, Inst. of Med., Health Literacy: A Prescription to End Confusion 37 (2004). 30 Id. 31Vernon Jordan, Jr, Vernon Can Read 6-8 (2001). 32 Id. at 6-8. 33 Id. at 8. 34For a full discussion of this study, see James H. Jones, Bad Blood: The Tuskegee Syphilis Experiment (1993) and Fred D. Gray, The Tuskegee Syphilis Study: The Real Story and Beyond (1998). See generally Frank M. McClellan, Informed Consent to Medical Therapy and Experimentation: The Case for Invoking Punitive Damages to Deter Impingement of Individual Autonomy, 3 J. Legal Med. 81 (1982) (arguing the conduct of professionals in some medical contexts, such as Tuskegee, warrants severe tort law sanctions). 35Gray, supra note 34, at 218. 36Grimes v. Kennedy Kreiger Inst., Inc., 782 A.2d 807, 812-14 (Md. 2001) (holding under Maryland law a parent or guardian cannot consent to the participation of a child in non-therapeutic research in which there is any significant risk of injury). 37 See Agency for Healthcare Research & Quality, National Healthcare Disparities Report (2004), available at http://www.ahrq.gov/qual/nhdr03/nhdrsum03.htm#Inequality. 38 See Lisa Ikemota, Racial Disparities in Health Care and Cultural Competency, 48 St. Louis U.L.J. 75 (2003) (assessing the role of the American culture of medicine in contributing to racial disparities in health care); Larry Pittman, A Thirteenth Amendment Challenge to Both Racial Disparities in Medical Treatments and Improper Physicians' Informed Consent Disclosures, 48 St. Louis U.L.J. 131 (2003) (assessing the impact of the “racial inferiority theory” on health care disparities and arguing for the pursuit of remedies based on a violation of the 13th Amendment. 39Health Literacy, supra note 29, at 67, finding 3-1. 40 Id. Even when the person can read at a high school level, the barrier of health illiteracy remains because the ability to read does not mean that a person can comprehend the meaning of medical and scientific language. 42Health Literacy, supra note 29, at 67, finding 3-1. 41 See generally Irwin S. Kirsch et al., Nat'l Ctr. for Educ. Statistics, Adult Literacy in America: A First Look at the Results of the National Adult Literacy Survey xiv-xvii (3d ed. 2002), available at http://nces.ed.gov/pubs93/93275.pdf (finding 21% to 23% of adults in the United States bear skills in the lowest level of prose, and 14% to 25% said they get a lot of help with everyday prose, document, and quantitative literacy tasks; 50 million more adults had skills that were quite limited). 43947 P.2d 961 (Haw. Ct. App. 1997). 44 Id. at 973-74. 45Nat'l Women's Health Res. Ctr., Women Health Literacy, Nat'l Women's Health Rep. Online, Oct. 2004, at http://www.healthywomen.org/healthreport/october2004/pg2.html. 46Lauran Neergaard, Improving Health Literacy, CBSNews.com, Oct. 14, 2002, at http://www.cbsnews.com/stories/2002/10/14/health/main525545.shtml. 47For a discussion of cultural competency issues, see generally Geri-Ann Galanti, Caring for Patients from Different Cultures (2004); Ikemota, supra note 38; Manish Champaneria & Sara Axtell, Cultural Competence Training in US Medical Schools, 291 J.A.M.A. 2142 (2004); Mary Hoban & Robert Ward, Building Culturally Competent College Programs, 52 J. Am. Coll. Health 137 (2003). 48Keomaka v. Zakaib, 811 P.2d 478, 486 (Haw. Ct. App. 1991). 49 Id. at 487. 50 See Browning v. Burt, 613 N.E.2d 993 (Ohio 1993). 51 Id. at 997. 52611 P.2d 902 (Cal. 1980). 53Thane Rosenbaum, The Myth of Moral Justice 39 (2004). 54 See Marie Bismark, Motivations for Medico-Legal Action: Lessons from New Zealand, 27 J. Legal Med. 55 (2006). 55The September 11th Victim Compensation Fund has evoked substantial commentary, presenting a variety of perspectives and criticism. For an insightful assessment of the social justice issues arising out of gender, race, and economic class considerations, see Martha Chamallas, The September 11th Victim Compensation Fund: Rethinking the Damage Element in Injury Law, 71 Tenn. L. Rev. 51 (2003). 56723 A.2d 1027 (Pa. Super. Ct. 1998), rev'd in part, 762 A.2d 650 (Pa. 2000). 57 Autopsy Follows Transplant Mix-up, CNN.com, Feb. 25, 2003, at http://www.cnn.com/2003/HEALTH/02/24/transplant.error/. 58718 F.2d 553 (3d Cir. 1983). 59Rosenbaum, supra note 53, at 33. 60One commentator aptly sums up the problem with viewing caps as an appropriate solution to the perceived medical malpractice crisis this way: The debate over medical malpractice insurance involves three major players—the legal community, the medical profession and the insurance industry. Any meaningful attempt to curtail the costs of malpractice premiums while protecting an injured patient's opportunity for just compensation must address problems in all three areas and offer reform across the board. Elizabeth Poisson, Addressing the Impropriety of Statutory Caps on Pain and Suffering Awards in the Medical Liability System, 82 N.C. L. Rev. 759, 786-87 (2004)