Medical Liability and the Surgeon: Wisdom From a Century Ago
“There is no insurance of a perfect result.”
It may be of small comfort to us in 2003 that the issue of medical liability has been on our collective mind for some time now.
In 1910 W.W. Keen, then emeritus professor of surgery at Jefferson Medical College, published his monumental work Surgery: Its Principles and Practice. This eight-volume work is of special neurosurgical interest, as in the third volume it contains Harvey Cushing’s first comprehensive publication on brain surgery, “Surgery of the Head.”
However, tucked away near the very end in a supplemental volume, after about 8,000 pages of learned text on surgery, lies a chapter entitled “The Legal Relations of the Surgeon” by Hampton L. Carson, Esq. He served as the attorney general of Pennsylvania and as the president of the Pennsylvania Bar Association; in addition, he began what grew to be a most important collection of early Americana, and published articles on the history of law.
The chapter includes a section entitled “Malpractice.” The term is defined as “doing that which a prudent man would have avoided under like or similar circumstance,” and a specialist is described as one who “must have and employ the ordinary knowledge and skill in that specialty. An impracticable standard of excellence is not required.”
Carson does list many “striking instances of malpractice,” including such contemporary-sounding cases as “leaving sponges, gauze, or tubes in wounds or body” and “failure to use x-rays where such were indicated and possible” (note that X-rays had been discovered only in 1895).
However, in discussing the “law of negligence” in cases of malpractice, he refers to many decisions that emphasize that “mere failure to effect a cure [does not] raise a presumption of lack of skill or care. There is no insurance of a perfect result.” He summarizes that “An error in judgment, unless gross, is not tantamount to lack of skill…Negligence of the surgeon is not to be presumed from a mere lack of satisfactory results.”
As neurosurgeons we know this all too well. Our challenge remains to make it clear to our patients and their families.
Michael Schulder, MD is associate professor in the Department of Neurological Surgery and director of Image-Guided Neurosurgery at UMDNJ-New Jersey Medical School.