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What Does New Theory Contribute to the


Evolution of the Tort of Medical
Malpractice?
Eleanor D. Kinney
Professor Steins article, Toward a Theory of Medical Malpractice,1 posits a
new theory for the tort of medical malpractice. Professor Stein re-examines
existing substantive, procedural, and evidentiary rules regarding the tort of
medical malpractice through a different lens with a view toward assessing the
effectiveness of the current rules governing the modern healthcare sector.
His new theory and other insights are helpful in understanding how best to
structure the tort of medical malpractice in todays healthcare sector.
The term theory as used by Professor Stein is a set of ideas intended to
explain a phenomenon with a view toward providing greater understanding
of the phenomenon. Theory can also establish principles for changes in the
phenomenon. The test of a theory is whether it contributes to better
practice, in this case, the adjudication and resolution of medical injury
disputes. In that respect, Professor Steins theory meets this threshold.
The tort of medical malpractice, under the law of most states, is a
species of the tort of negligence. The tort of negligence in English law, the
foundation of the tort of negligence, in most of the United States and other
English speaking countries, originated from the law of medieval England.
The tort of negligence developed from the English writs of trespass and
trespass in a similar case in a rather haphazard and unconscious fashion that
was probably influenced by the need of the Plantagenet kings to raise funds
for their military adventures.2 Under the common law writ system, the Kings
Courts, namely the Court of Common Pleas, heard disputes among private
parties and provided relief only if the characteristics of the offending action

Hall Render Professor of Law Emeritus, Indiana University Robert H. McKinney


School of Law; Co-director Emeritus, William S. and Christine S. Hall Center for Law and
Health, Indiana University Robert H. McKinney School of Law.
1. Alex Stein, Toward a Theory of Medical Malpractice, 97 IOWA L. REV. 1201 (2012).
2. See generally Morris S. Arnold, Accident, Mistake, and Rules of Liability in the FourteenthCentury Law of Torts, 128 U. PA. L. REV. 361 (1979); John H. Wigmore, Responsibility for Tortious
Acts: Its History, 7 HARV. L. REV. 315 (1894).

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and the injury or loss sustained met specific conditions.3 If the terms of the
writ were not met, a remedy was unavailable.
So it was with the first reported medical malpractice casean action
against a physician for trespass in 1374. The case was before the Kings
Bench where a plaintiff alleged that the defendant-surgeon had negligently
treated and injured his hand.4 The court indicated that the surgeon would
be liable for failure to properly treat the patients hand in a competent
manner but barred the suit on the ground that it had been pled in trespass
and not in writ of trespass vi et armis. Alas, contemporary theory failed our
medieval plaintiffs injured hand.
Before the work of Sir William Blackstone,5 the common law was
organized by forms of action. Lord Blackstone and later treatise writers
sought to establish doctrinal order within the English common law; however,
these classifications were superimposed over the writ system.6 The treatise
writers developed classificatory doctrines that organized the different areas
of the common law into regulatory schemes that were comprehensible to
lawyers. If there was ever chaos in a body of law, the law of torts in medieval
England is exemplary. The old forms of action proved to be ineffective in
achieving compensation for personal injury and the courts and
commentators of the period developed the form of action trespass in a similar
case, which is the ancestor of negligence.7
Still, the law of torts went undeveloped for centuries. It was not until the
advent of the industrial revolutionespecially the railroadsthat
humankind invented machines that could consistently cause serious injury.
Shortly thereafter, jurists and scholars sought to reinterpret tort law to meet
the demands of industrialization. In 1881, Oliver Wendell Holmes wrote his
classic treatise on the common law, which clarified the law of torts
considerably.8 All of these scholars brought theory to the service of making
tort doctrine responsive to the exigencies of the modern industrial state.
3. See F.W. MAITLAND, EQUITY: ALSO, THE FORMS OF ACTION AT COMMON LAW: TWO
COURSES OF LECTURES 34285 (A.H. Chaytor & W.J. Whittaker eds., 1929).
4. The Surgeons Case, Y.B. 48 Edw. 3, fol. 6, Hil. pl. 11 (1374) (Eng.), reprinted in C.H.S.
FIFOOT, HISTORY AND SOURCES OF THE COMMON LAW: TORT AND CONTRACT 82 (1949); see also
JOHN BAKER, BAKER AND MILSOM SOURCES OF ENGLISH LEGAL HISTORY: PRIVATE LAW TO 1750, at
402 (2d ed. 2010) (citing the case as Stratton v. Swanlond); Theodore Silver, One Hundred Years
of Harmful Error: The Historical Jurisprudence of Medical Malpractice, 1992 WIS. L. REV. 1193, 1196
(citing, among other sources, Allan H. McCoid, The Care Required of Medical Practitioners, 12
VAND. L. REV. 549, 550 (1959); C. Joseph Stetler, The History of Reported Medical Professional
Liability Cases, 30 TEMP. L.Q. 366, 367 (1957)).
5. WILLIAM BLACKSTONE, COMMENTARIES ON THE LAWS OF ENGLAND (Univ. of Chi. Press
1979) (17651769).
6. See James Gordley, The Common Law in the Twentieth Century: Some Unfinished Business, 88
CALIF. L. REV. 1815, 182128 (2000).
7. Charles O. Gregory, Trespass to Negligence to Absolute Liability, 37 VA. L. REV. 359, 363
(1951) (internal quotation marks omitted).
8. See O.W. HOLMES JR., THE COMMON LAW (1881).

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The courts harsh application of the contributory negligence and


assumption of risk doctrines in cases involving industrial accidents led states
to enact workers compensation statutes.9
The evolution of the healthcare sector likewise shaped the tort of
medical malpractice.10 Until the early twentieth century, medicine offered
few real remedies and was practiced in a fairly simple manner with
physicians ministering to patients in their homes.11 Following World War II,
medical science took off with tremendous federal investment in biomedical
research and health insurance for the aged in the Medicare program.12
Subsequently, medical malpractice claims increased as state courts
abandoned the same locality rule and moved toward national standards of
care, which greatly enhanced the willingness of physicians to testify in
malpractice cases.13
Since the mid-1970s when the first availability and affordability of
medical liability insurance crisis occurred, malpractice scholars and
policymakers have focused on law reform addressing the lack of available
and affordable medical insurance.14 Doctors have experienced a
rollercoaster ride of rising and falling insurance premiums as insurers adjust
to other forces in the insurance marketsuch as changes in interest rates15
and spiking malpractice insurance premiumsand, in some specialties (e.g.,
obstetrics and anesthesiology), have sustained a relatively high frequency of
claims.16 States enacted laws to slow the increase in medical malpractice
insurance premium rates by reducing the frequency and severity of claims.17
Physicians, and their representatives, devote much time and energy
advocating for the reform of medical liability systems and have been strong

9. Richard A. Epstein, The Historical Origins and Economic Structure of Workers Compensation
Law, 16 GA. L. REV. 775, 77576 (1982).
10. See KENNETH ALLEN DE VILLE, MEDICAL MALPRACTICE IN NINETEENTH-CENTURY
AMERICA: ORIGINS AND LEGACY 65113 (1990); Jay Katz, Foreword to ANGELA RODDEY HOLDER,
MEDICAL MALPRACTICE LAW, at v, vvi (2d ed. 1978).
11. See PAUL STARR, THE SOCIAL TRANSFORMATION OF AMERICAN MEDICINE 1920 (1982).
12. Id. at 33847, 36870.
13. See Michelle Huckaby Lewis et al., The Locality Rule and the Physicians Dilemma: Local
Medical Practices vs the National Standard of Care, 297 JAMA 2633, 2634 (2007) (describing most
courts rejection of the locality rule); see also Randall R. Bovbjerg, Legislation on Medical
Malpractice: Further Developments and a Preliminary Report Card, 22 U.C. DAVIS L. REV. 499, 50203,
52829 (1989) (noting the increase in malpractice claims during this period).
14. Eleanor D. Kinney, Malpractice Reform in the 1990s: Past Disappointments, Future Success?,
20 J. HEALTH POL. POLY & L. 99, 10102 (1995).
15. AMS. FOR INS. REFORM, MEDICAL MALPRACTICE INSURANCE: STABLE LOSSES/UNSTABLE
RATES 2007, at 15 (2007), available at http://www.insurancereform.org/studies/
StableLosses2007.pdf.
16. See Anupam B. Jena, Seth Seabury, Darius Lakdawalla & Amitabh Chandra, Malpractice
Risk According to Physician Specialty, 365 NEW ENG. J. MED. 629, 62932 (2011); Bovbjerg, supra
note 13, at 50406 & fig.1.
17. See FRANK A. SLOAN & LINDSEY M. CHEPKE, MEDICAL MALPRACTICE 8797 (2008).

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advocates of tort reforms, such as damage caps, that address the frequency
or severity of malpractice claims.18
Todays changing healthcare sector calls for new thinking about
medical malpractice liability rules, just as social changes in times past called
for changes in tort law and theory. It is the duty of legal scholars to examine
the effectiveness of existing rules in a changed environment. An example of
how theory can be responsive to changing realities is the application of
enterprise liability to the healthcare sector in the 1990s.19 In the 1970s and
1980s, medical practice was transformed from a system of independent
contracting physicians with hospital medical staffs to the organization of
medical providers in integrated delivery systems.20 Enterprise liability offered
a more rational tort regime for this delivery-of-care structure.
In more recent years, developments occurred that have further changed
the medical malpractice landscape. First, the patient-safety movement, due
to its emphasis on the usage of industrial engineering to prevent medical
injury, has changed the way healthcare providers and insurers think about
medical injury. Since the late 1980s, institutional healthcare providers have
adopted approaches of healthcare providers. The second important
development was the application of the theories of Total Quality
Management and Continuous Quality Improvement (TQM/CQI),
developed by William E. Deming21 and Joseph Juran,22 from industrial
quality science.23 According to TQM/CQI theory, quality management
should strive to reduce statistical variation in the production process,
thereby improving production quality to a level that is uniform and
predictable, which will increase the likelihood that customer expectations
are met.24 Since the 1990s, data-driven TQM/CQI theory and practice has
become an integral part of quality assurance and improvement concepts in
the healthcare field.

18. Kinney, supra note 14, at 101.


19. See generally Kenneth S. Abraham & Paul C. Weiler, Enterprise Medical Liability and the
Evolution of the American Health Care System, 108 HARV. L. REV. 381 (1994); William M. Sage,
Kathleen E. Hastings & Robert A. Berenson, Enterprise Liability for Medical Malpractice and Health
Care Quality Improvement, 20 AM. J.L. & MED. 1 (1994).
20. See Eleanor D. Kinney, The Corporate Transformation of Medical Specialty Care: The
Exemplary Case of Neonatology, 36 J.L. MED. & ETHICS 790, 79193 (2008).
21. See W. EDWARDS DEMING, OUT OF THE CRISIS 2324 (1986). See generally W. EDWARDS
DEMING, THE NEW ECONOMICS: FOR INDUSTRY, GOVERNMENT, EDUCATION (2d ed. 1994).
22. J.M. JURAN, MANAGERIAL BREAKTHROUGH: THE CLASSIC BOOK ON IMPROVING
MANAGEMENT PERFORMANCE 40123 (rev. ed. 1995).
23. See, e.g., Donald M. Berwick, Continuous Improvement as an Ideal in Health Care, 320 NEW
ENG. J. MED. 53, 5456 (1989); Glenn Laffel & David Blumenthal, The Case for Using Industrial
Quality Management Science in Health Care Organizations, 262 JAMA 2869 (1989).
24. See JURAN, supra note 22, at 41823.

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Since the Institute of Medicines published its seminal report, To Err Is


Human,25 healthcare providers have given greater attention to patient safety.
This report made two important factual findings that have precipitated a
revolution in U.S. healthcare. These observations were: (1) an estimated
44,000 to 98,000 people die each year in hospitals from preventable
medical errors;26 and (2) system failures, rather than poor performance by
individual practitioners, cause at least half of patient injuries.27 The report
recommended that institutional healthcare providers create a culture of
safety by borrowing from quality science in the engineering industries.
Institutional healthcare providers have largely been persuaded by these
findings and have instituted risk-reducing strategies in the elements and
processes of care to reduce risks to patient safety.28
Further, the medical malpractice insurance market has changed
considerably since the mid-1970s, with widely fluctuating premium prices
and crises in the availability and affordability of medical malpractice
insurance.29 Increasingly healthcare providers use captive insurance
companies, which are owned by the providers organization.30 Captive
insurance companies interests are thus aligned financially and
programmatically with those of the healthcare provider. Because captive
insurance companies now insure the majority of institutional health care
providers and integrated delivery systems, especially those that employ
physicians, more innovative approaches to the resolution of malpractice
claims are possible.31 Such innovation was not possible when hospitals and
physicians were insured by for-profit insurance companies primarily
concerned about their bottom lines. Specifically, captive insurance
companies, which are owned by the providers, can negotiate settlements and
make arrangements for apologies and other remedial efforts, behavior that
would be inappropriate for a for-profit company to engage in.
In this rapidly changing landscape for medical malpractice, Professor
Steins theory is helpful. Professor Steins theory focuses on the systems
institutional infrastructure and the mechanisms employed under medical
malpractice law to impose, restrict, and expand care providers liability.
Borrowing from Grant Gilmores analysis of contract,32 he categorizes the

25. INST. OF MED., TO ERR IS HUMAN: BUILDING A SAFER HEALTH SYSTEM (Linda T. Kohn et
al. eds., 2000).
26. Id. at 31.
27. See id. at 6970.
28. INST. OF MED., PATIENT SAFETY: ACHIEVING A NEW STANDARD FOR CARE 26 (Philip
Aspden et al. eds., 2004).
29. See supra notes 1416 and accompanying text.
30. Eleanor D. Kinney, The Potential of Captive Medical Liability Insurance Carriers and Damage
Caps for Real Malpractice Reform, 46 NEW ENG. L. REV. 489, 49598 (2012).
31. Id. at 491.
32. GRANT GILMORE, THE DEATH OF CONTRACT 4748 (1974).

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systems existing substantive, evidentiary, and procedural rules as entries


and exits in ways that facilitate a better understanding of the systems
liability and causation mechanisms.33 Under Steins theory, entry rules
determine a providers entry into liability by instructing courts how to
identify malpractice in the treatment of a patient34 or, alternatively, in the
healthcare providers setup of equipment, facilities, information, and
personnel.35
In examining the current medical malpractice system through the lens
of his theory and the exhaustive analysis of state medical malpractice cases,
Professor Stein concludes that the current system is quite fair and that calls
for increased damage caps and other strategies for reducing the frequency
and severity of medical malpractice claims are unwarranted.36 This
conclusion and the analysis on which is it is based is quite refreshing given
the highly ideological nature of the current debate over medical malpractice
law and policy.
Professor Steins theory was especially interesting in its discussion of the
causation rules in medical malpractice. Professor Stein persuasively points
out that the rules regarding the demonstration of causation of a medical
injury are more lax and operate to the benefit of patients.37 Such a tilt is
perhaps appropriate since most patients have underlying medical conditions
that mitigate the possibility of positive outcomes, and healthcare providers
can effectively use this fact to undermine plaintiffs claims even where the
medical practice was obviously deficient.
Perhaps the most important contribution of Professor Steins theory is
its distinction between treatment and setup entry rules.38 Under
Professor Steins theory, the medical profession has the exclusive power to
devise treatment-related entry rules. Courts, legislatures, and the medical
profession collectively formulate entry rules, pertaining to elements of the
delivery of care, based on factors not strictly related to whether treatment
conforms to established medical norms. Setup rules address elements and
processes of care delivery that are often not in control of the physician. And,
exit rules, by contrast, determine the circumstances under which a
defendant may be granted a releaseor exitfrom liability. Courts have the
exclusive power over the exit rules that determine the circumstances under
which medical malpractice defendants will be released from liability.
Professor Steins concerns about the conflation of treatment and setup
entry rules is an important insight that can help to appropriately sort out
medical malpractice liability in an increasingly complex medical sector.
33.
34.
35.
36.
37.
38.

Stein, supra note 1, at 120826.


Id. at 120809.
Id. at 122627.
Id. at 125657.
Id. at 1218 (describing the relaxed causation doctrine).
See id. at 122635.

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Policymakers, scholars, and, increasingly, the medical profession have


recognized that often medical injury occurs despite a healthcare providers
conformity with professional norms. Indeed, the central idea of both total
quality management and patient safety approaches is to address issues
contemplated in setup entry rules. It is appropriate that the courts and
legislatures have a role in the delineation of these rules, as they involve
multiple matters outside the scope of physician expertise.
In sum, Professor Stein has made an important contribution to medical
malpractice law. His theory is helpful in sorting out the liability rules of the
current, confusing and constantly changing U.S. healthcare sector. But, the
reader should not overreach. This is not the end of tort as we know it, as
Professor Stein admits.39 Tort law is long enduring, even with all its quirks.
As the famous English historian of the common law, Frederic Maitland, said
while lecturing on the writ system, The forms of action we have buried, but
they still rule us from their graves.40 Tort law will be around for a long time.
It is the one legal vehicle that allows a single individualwithout permission
from the government or anyone elseto ask a court for relief from a civil
wrong not arising in contract. The law of torts is not likely to die soon.

39.
40.

See id. at 1257.


MAITLAND, supra note 3, at 296.

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