The Uses of The Social Transformation of American Medicine: The Case of Law

The Social Transformation of American Medicine (1982) is a historical study written by a sociologist. Much of the influence of the book, however, has been on disciplines other than history and sociology. Joel Howell demonstrates in his contribution to this issue that the book has been widely read by physicians. This is unsurprising because the book is about physicians. The book has been widely cited in other fields as well, fields as diverse as health services research, nursing, social work, bioethics, philosophy of medicine, dentistry, and anthropology. It is possible, however, that in no other single discipline has the book been referenced as often as in law.

Although Paul Starr himself was a fellow in law, medicine, and science at the Yale Law School in the mid-1970s, law plays a minor role in The Social Transformation. Indeed, one could argue that Starr seriously underestimated the role of law in shaping the major trends that the book documents, for example the part played by the corporate practice of medicine doctrine in supporting the dominance of doctors in the early twentieth century or the importance of antitrust law in undermining that dominance in the late twentieth century.¹

Legal scholarship has not neglected Starr's work, however. As of the summer of 2003, The Social Transformation of American Medicine had been cited more than fourteen hundred times in 433 law review articles found in Westlaw.² It has additionally been cited many more times in legal texts and treatises, in articles by legal academics in medical or health policy journals, and in law review articles that are not available on Westlaw (which still does not include all law journals and included far fewer in the 1980s), but it is not possible to get accurate counts of citations in this literature. The Social Transformation is clearly the most cited single source in law review articles dealing with health law.³ By contrast, Jay Katz's classic work, The Silent World of Doctor and Patient (1984), has been cited in 331 articles, while Kenneth Arrow's celebrated article "Uncertainty and the Welfare Economics of Medical Care" (1963) has been cited in only 154. The citation frequency of The Social Transformation in law review articles dwarves that of other classic medical history texts: Charles Rosenberg's history of the hospital, The Care of Strangers (1987), has been cited in only twenty-four articles, while Rosemary Stevens's In Sickness and in Wealth (1989) has been cited in only thirty-eight articles. Although the Starr book was cited particularly often in articles published during the Clinton health plan debate of the early 1990s, in which Paul Starr was personally engaged, citation of the book has not declined markedly as the book has aged: it was cited in twenty-four articles in 2001 and in twenty-one in 2002.

The book has also had a major influence on the academic discipline of health law. Though law and medicine has existed as an academic legal specialty for decades, prior to the 1970s it was concerned primarily with malpractice and forensic medicine. During the 1970s, court decisions such as Roe v. Wade (410 U.S. 113 [1973]) and In re Quinlan (355 A.2d 647 [N.J. 1976]) brought bioethics into the medical law curriculum. Other court decisions from the 1960s and 1970s creating the doctrine of informed consent and applying antitrust law to health care, as well as legislative enactments expanding regulatory oversight of health care, enlarged the domain of health law itself (Jacobson 2002: 49-67). The modern academic discipline of health care law, however, is a creation of the 1980s.⁴ While the academic discipline of medical law had focused almost exclusively on physicians, health law focused on the health care industry in its entirety. While medical law texts had been confined largely to tort, criminal, and evidence law, the modern health law curriculum encompassed additionally administrative, antitrust, tax, fraud and abuse, and regulatory law, as well as bioethics.

The academic field of health law was heavily influenced by four texts that...