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C H A P T E R 1 0 Reputation, Malpractice Liability, and Medical Error W I L L I A M M . S A G E The purest treasure mortal times afford is spotless reputation. —William Shakespeare Reputation is not of enough value to sacrifice character for it. —Miss Clark, U.S. charity worker, quoted in Petticoat Surgeon Introduction For over a century, opposition to malpractice litigation has been a litmus test for membership in the medical profession. Doctors hate malpractice suits. They hate them passionately and continuously. Being sued becomes a recurring nightmare for many physicians, and occasionally an obsession. Eliminating malpractice suits takes precedence over every other political objective— whether public-interested or self-serving—for the American Medical Association and state medical societies. No contradictory belief, however well-reasoned , empirically based, or sincerely held, succeeds in crowding out antipathy toward malpractice from physicians’ minds. Not the large number of patients who die unnecessarily each year from medical errors; not the desirability of allowing patients to sue HMOs for improper care. Why does malpractice stimulate the medical profession’s “common bile duct”? For every straightforward explanation, there is an equally persuasive counterargument. Medical malpractice awards can be staggering, but they are almost entirely paid by liability insurers. Defending a lawsuit consumes large amounts of physicians’ time and energy, but lawsuits are still the exception rather than the rule. The cost of malpractice insurance is considerable, but physicians are far from impoverished by it. Periodic “crises” of insurance availability and affordability produce stress and uncertainty, but these episodes punctuate much longer periods of stability and prosperity. 159 c10 sharpe pp159-184 08/05/2004 16:57 Page 159 Yet none of these mitigating factors succeeds in taking the edge off doctors’ suffering. The answer to this paradox may best be captured by a single word: “reputation.” The dictionary definition of reputation reads: “overall quality or character as seen or judged by people in general; recognition by other people of some characteristic or ability; a place in public esteem or regard: good name.” A thesaurus offers the following synonyms: eminence, face, fame, honor, image, legacy, memory, popularity, standing, celebrity, character, distinction, name, place, position, prestige, prominence, rank, renown, repute, self-respect, station , status. As this suggests, reputation is a complicated concept. At bottom, however, a malpractice suit is a genuinely felt professional insult—an assault on both physicians’ self-esteem and their esteem by others. Reputation interacts with law in interesting ways. Since ancient times, society has used both formal and informal means to police itself (Hunter 1994). Recently, legal scholars have begun to analyze in detail the importance of social norms to law (McAdams 1997). Adherence to both law and norms typically, but not always, heightens reputation. Violations of law and social codes tend to lower reputation. Reputation also protects against legal (and norm-based) sanctions , usually because prosecutors, judges, and juries exercise their discretion in that manner. At some point, however, perceptions of trust betrayed may lead to harsher-than-usual treatment of violators whose offenses belie their reputations . While members of the nobility of the Middle Ages were often immune from criminal charges (so-called “fur-collar crime”), aristocrats in eighteenthcentury France met a very different fate (Hanawalt 1998, 53–69). Reputation is frequently referenced by courts in malpractice suits and other health care litigation. In an early case involving chiropractors, Foster v. Thornton (1936), the Florida Supreme Court invoked reputation to establish a legal standard for proving malpractice. According to the court: “In cases arising from charges of malpractice, the sum of money involved regardless of its size, is a mere gesture in comparison with the professional character and reputation of the defendant. He should not, therefore, be condemned on evidence that does not point conclusively to his negligence.” However, the importance of reputation was assumed rather than elucidated. For example, the court did not specify whether the physician’s self-esteem was its primary concern, or the commercial harm to the physician’s livelihood that might follow a finding of liability. More recent cases have cited both aspects of reputation, and have connected the latter to structural features of physician practice. In Raine v. Drasin (1981), the Kentucky Supreme Court allowed physicians to recover damages for malicious prosecution where most of the harm was emotional. The court noted that the defendants “[testified] to their embarrassment, humiliation, mortification and mental anguish at having been publicly accused of malpractice. . . . [One doctor testified] that he suffered an...

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