Medical malpractice is professional misconduct by physicians and surgeons toward a patient. Historically, malpractice falls into two categories: criminal malpractice covers actions contrary to or expressively forbidden by law; civil malpractice, the dominant form in the twentieth and twenty-first centuries, refers to injurious treatment of the patient that includes unnecessary suffering or death that is due to professional ignorance, carelessness, a want of proper medical skills, and a disregard for established rules and practices. More rarely, malpractice can cover lawyers and other professionals.
Medical malpractice suits emerged in the nineteenth century and came about only after the practice of medicine became informed by a scientific revolution that involved such discoveries as sepsis, immunization, and the germ theory. Suits were rare in the South, and malpractice was not a clearly defined term in the nineteenth century, when Arkansas recorded only a few malpractice suits. One reason for Arkansas’s slow development was the lack of professional standards. Territorial governor John Pope vetoed the first licensing bill, proclaiming that “the highest authority known in this land, public opinion,” was superior to diplomas. Medical licensing remained weak throughout most of the twentieth century.
One of Arkansas’s notable nineteenth-century malpractice cases was of a criminal origin. In 1881, a Sharp County grand jury indicted doctors Nathan G. Hardister and Henry W. Brown for causing the death of Amanda Saunders through medical malpractice. Sanders, a pregnant woman, was given a variety of treatments including dangerous drugs, ergot, and morphine. Unable to induce her to deliver, Hardister aborted the fetus and failed to remove the afterbirth. His patient died a week later.
The Arkansas Supreme Court sustained the state’s prosecution. Criminal malpractice suits—which cover actions contrary to, or forbidden by, law—increased greatly in the late nineteenth century when states began criminalizing abortion. Numerous controversies resulted in consequence. For instance, a tubercular mother who gave birth had a life expectancy of only two years, thus making the procedure necessary to save the life of the mother. One out of every sixty Arkansans suffered from the disease, and it accounted for one-seventh of the state’s deaths.
By the twentieth century, civil cases dominated—those in which a patient is injured due to professional ignorance, a want of medical skills, or carelessness. Certain rules applied: a physician who claimed to have a license but did not committed fraud; a physician who promised a certain result and failed to achieve it breached a contract. Arkansas’s version of these rules was spelled out in Dunman v. Raney (1915), which held that the local physician would be judged by the practices of other doctors in the vicinity. This vicinity rule protected doctors from many well-founded suits. However, a parcel of suits brought down John Brinkley, the notorious goat-gland implant surgeon whose quack methods went unchallenged by state regulatory officials. State authorities were equally useless in dealing with Norman Baker’s cancer clinic at Eureka Springs (Carroll County) in the old Crescent Hotel.
The first serious challenge to the locality rule came in Gambill v. Stroud (1975), a Jonesboro (Craighead County) case that originated when a minor mole removal left the patient in a vegetative for the rest of her life. The trial pitted titans of the law against each other: Jack Deacon for the doctor and St. Bernard’s Hospital, and Henry Woods and Sidney McMath for the plaintiff. When the case first reached the Arkansas Supreme Court, Justice George Rose Smith replaced the locality rule with a general standard of average care formula. However, on re-hearing, the court reversed itself. In 1979, in response to a perceived malpractice crisis, the legislature passed the Medical Malpractice Act, designed to throw every obstacle in the way of plaintiffs. For instance, it established a statute of limitations of two years following surgery for malpractice, though a suit over finding a foreign object (usually of the sort left after surgery) had a one-year limitation after the date of the find, whether or not the two-year limit had already passed. Despite the law, the locality rule became increasingly outdated. In DeWitt v. Brown (1982), commonly called the “cowboy case” after the occupation of the plaintiff, a suit about an incorrectly set leg shattered the locality rule since Fort Smith (Sebastian County) had advertised itself as “a hub,” thereby implying that the place had some standards.
A second method long employed to fight suits was to attack the witnesses. It was well known that local physicians rarely testified against a colleague however egregious that person’s actions. Outside witnesses had to be imported, and of course—as in the case of Gambill v. Stroud—they could not be expected to know, for instance, that air conditioning failures in the operating room were a common local occurrence. The state Supreme Court’s reaction to these tactics in part was to return to the legal principle of res ipsa loquitur, or “the thing speaks for itself.” Hence, in the “blue flame” case of Schmidt v. Gibbs (1991), it was within the province of the jury to know that a patient was not supposed to catch fire on the operating table. The patient in this case was undergoing a tracheotomy. After the administration of anesthesia, the doctor made an incision in her trachea using a cauterizing machine commonly called a “bovie.” However, the machine ignited her endrotracheal balloon, resulting in a blue flame that issued from her throat. She died twelve days later. The court held that malpractice claims could be established by inference or common sense.
Arkansas’s legislature returned to the topic with the Civil Justice Reform Act in 2003. The statute changed exiting rules on determining liability, making it much easier for defendants to cast blame on remote and even unknown “empty chair” nonparties. The legislation restricted punitive damage claims and set new rules hostile to plaintiffs for medical injury actions. For example, the state and federal inspections and accrediting reports were rendered inadmissible for use by the plaintiff unless “relevant to the plaintiff’s injury” but freely could be used by the defendants. In the judgment of the state’s leading legal malpractice authority, insurance companies were the main beneficiaries of this law. Serious inequities and an undercutting of safety features could be by-products of the legislation, and it is likely that controversies will remain.
For additional information:
Leflar, Robert B. “The Civil Justice Reform Act and the Empty Chair.” Arkansas Law Notes (2003): 67–77.
———. “How the Civil Justice Reform Act Changes Arkansas Tort Law.” Arkansas Lawyer (Fall 2003): 26–28, 38.
Puryear, Jeffrey W. “Case Notes: Schmidt v. Gibbs; The Application of Res Ipsa Loquitur to Arkansas Medical Malpractice Litigation.” Arkansas Law Review 46 (1993): 397–433.
Mann, Edwina Walls, ed. Contributions to Arkansas Medical History: History of Medicine Associates Research Awards Papers, 1988–1992. Kansas City, MO: Walsworth Printing Co., 1999.
Walls, Edwina, ed. Contributions to Arkansas Medical History: History of Medicine Associates Research Awards Papers, 1986–1987. Charlotte, NC: Delmar Printing Company, 1990.
Michael B. Dougan
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