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Medical Malpractice in Nineteenth-Century America

Medical Malpractice in Nineteenth-Century America: Origins and Legacy

KENNETH ALLEN DE VILLE
Copyright Date: 1990
Published by: NYU Press
Pages: 319
https://www.jstor.org/stable/j.ctt9qg1rv
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  • Book Info
    Medical Malpractice in Nineteenth-Century America
    Book Description:

    Highly readable . . . . interdisciplinary history of a high order.-- The Historian Well-written and superbly documented . . . . Both physicians and lawyers will find this book useful and fascinating.-- Journal of the American Medical Association This is the first book-length historical study of medical malpractice in 19th-century America and it is exceedingly well done . . . . The author reveals that, beginning in the 1840s, Americans began to initiate malpractice lawsuits against their physicians and surgeons. Among the reasons for this development were the decline in the belief in divine providence, increased competition between physicians and medical sects, and advances in medical science that led to unrealistically high expectations of the ability of physicians to cure . . . . This book is well written, often entertaining and witty, and is historically accurate, based on the best secondary, as well as primary sources from the time period. Highly recommended.-- Choice Adept at not only traditional historical research but also cultural studies, the author treats the reader to an intriguing discussion of how 19th-century Americans came truly to see their bodies differently . . . . a sophisticated new standard in the field of malpractice history. -- The Journal of the Early RepublicBy far the best compilation and analysis of early medical malpractice cases I have seen . . . . this excellently crafted study is bound to be of interest to a large number of readers.-- James C. Mohr, author of Abortion in America: The Origins and Evolution of a National Policy

    eISBN: 978-0-8147-2099-8
    Subjects: History

Table of Contents

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  1. Front Matter
    (pp. i-vi)
  2. Table of Contents
    (pp. vii-viii)
  3. Illustrations
    (pp. ix-x)
  4. Preface
    (pp. xi-xiv)
  5. Acknowledgments
    (pp. xv-xvi)
  6. CHAPTER 1 Before the Flood, 1790–1835
    (pp. 1-24)

    In March 1829 Dr. Asabel Humphrey instructed his student to vaccinate Harriet Landon for smallpox. The physician had been hired by the town of Salisbury, Connecticut, to vaccinate its citizens. Humphrey’s student made two punctures just above Landon’s elbow joint. After the treatment Landon found that her lower arm was almost paralyzed. When her condition did not improve, she sued Humphrey for malpractice. After several witnesses, including a medical school professor, testified that the vaccination punctures were in a “very unusual place” and had caused irreparable injury, the jury awarded Landon $500 in damages. In reporting the case for the...

  7. CHAPTER 2 The Deluge, 1835–1865
    (pp. 25-64)

    In 1844 a writer for theBoston Medical and Surgical Journalwarned that qualified physicians were “constantly liable to vexatious suits instituted by ignorant and unprincipled persons.”¹ In 1853 theWestern Journal of Medical and Physical Sciencesreported that malpractice suits “occur almost every month in the year and everywhere in our country.”² These writers were not exaggerating, and their suspicions and fears were well-founded. They and their contemporaries were witnessing the first symptoms of a professional disease that would plague the medical community for the next 150 years.

    Although medical malpractice suits were virtually nonexistent between 1790 and 1835,...

  8. CHAPTER 3 Schools for Scandal
    (pp. 65-91)

    The increase in malpractice suits and threats of suits in the early 1840s was sudden and dramatic. Contemporaries identified several factors as the underlying cause of the phenomenon. Medical society committees on malpractice in Pennsylvania in 1850, Kentucky in 1853, Massachusetts in 1854, and Ohio in 1855, plus scores of individual physicians, agreed that the status of the profession was deteriorating.¹ However ill defined, a view prevailed that the increase in malpractice suits was inextricably related to this decline in public confidence. In addition, physicians contended that the specific agents of the decline, aspects of medical treatment, competition, and antiprofessional...

  9. CHAPTER 4 “The Expression of a Wellmade Man”
    (pp. 92-113)

    Malpractice suits arising from the treatment of fractures and dislocations constituted most of the increased litigation after 1835, and continued to be the major complaint through the early decades of the twentieth century.² Lay and professional attitudes toward orthopedic practice and the development of fracture treatment, like physicians’ low status, intraprofessional rivalry, and Jacksonian sentiment, represented one of the immediate causes of the first dramatic leap in malpractice rates. But at the same time the impact of technological developments illustrates an underlying cultural attitude that helped cause suits into the twentieth century. Malpractice suits were, in part, an expression of...

  10. CHAPTER 5 Community, Providence, and the Social Construction of Legal Action
    (pp. 114-137)

    Malpractice litigation flourished for the first time in the Jacksonian period because the social and medical environments were conducive to the frequent prosecution of physicians. The contributing causes in the first malpractice “crisis” were intraprofessional rivalry, and the decline of the professional and social status of the physician. Additionally, dramatic technological advancements blurred previous conceptions of standards of care and created unrealistic expectations in both patients and physicians. These immediate causes increased the impact of Americans’ long-term growing concern for physical well-being. But these factors alone still do not account for the sudden and unprecedented appearance of large numbers of...

  11. CHAPTER 6 “Dangerous Ground for a Surgeon”
    (pp. 138-155)

    “Western New York is becoming dangerous ground for a surgeon” a writer complained in 1844. According to the observer, qualified physicians were “constantly liable to vexatious suits, instituted by ignorant, unprincipled persons, sometimes urged on, it is presumed, by those who have a private grudge.” This editorialist warned “that unless a better state of things could be brought about, the medical practitioners in that part of the country would unitedly refuse to render any assistance in cases of fractures and dislocations.”¹ One physician claimed that between 1833 and 1856, “[t]here was scarcely a surgeon in the State of New York,...

  12. CHAPTER 7 The Road Not Taken: Medical Malpractice and the Path of the Common Law
    (pp. 156-186)

    In 1956 a North Carolina state supreme court judge declared that a physician agreeing to accept a person as a patient “does not create a contract in the sense that the term is ordinarily used.” In medical malpractice cases, the judge observed, “it is apt and perhaps more exact to say it [the doctor-patient relationship] creates a status or relation rather than a contract.”¹ This observation is consistent with the modern tendency to view medical malpractice as a tort of negligence rather than a breach of contract. Twentieth-century legal theorists definetortsbroadly as private civil wrongs that violate certain...

  13. CHAPTER 8 The More Things Change … : Medical Malpractice, 1865–1900
    (pp. 187-223)

    Medical malpractice suits continued to plague physicians through the last third of the nineteenth century. Although the suits and professional responses to them changed in several important respects, the trends and patterns that surfaced between 1835 and 1865 endured. The rate of suits and size of the awards climbed steadily but undramatically. The evolution of medical practice and organization generated new suits and new issues. Ceaseless development of medical innovations inspired new litigation in the same way that the improvement in fracture treatment engendered suits in the first half of the century. Physicians blamed many of the same factors they...

  14. CHAPTER 9 Conclusion
    (pp. 224-230)

    Malpractice suits became a prominent and permanent feature of American medical life in the 1840s. A combination of immediate, short-term causes and underlying, long-term developments explain the first dramatic increase in the litigation. Although the short-term, inciting factors disappeared, new technological, social, professional, and legal factors arose to take their place in generating suits. Moreover, the long-term cultural preconditions for the suits matured, allowing and even encouraging a broader segment of society to sue for a wider range of misfortunes.

    Physicians’ declining status in the first half of the century provided the context for the initial malpractice “crisis.” Poor, uneven,...

  15. Abbreviations
    (pp. 231-233)
  16. Appendixes
    (pp. 234-238)
  17. Notes
    (pp. 239-286)
  18. Bibliography
    (pp. 287-314)
  19. Index
    (pp. 315-320)
  20. Back Matter
    (pp. 321-321)