EUGENE–Americans who don’t get the results they expect from the medical profession routinely turn to the courts for satisfaction.

Unfortunately, the nation’s current malpractice s system is expensive as a social policy and irrational as a compensatory mechanism, according to University of Oregon historian James Mohr.

"If reform of that system is possible," argues Mohr, "we need to understand the historical dynamics that produced the current situation in the first place."

In an article published in the April 5 issue of the Journal of the American Medical Association (JAMA), Mohr explores the beginnings of medical malpractice litigation in 19th-century America and the historical factors that have sustained the practice since then.

The most important precondition for the rise in malpractice lawsuits was the development of "marketplace professionalism," a situation unique to the United States, according to Mohr.

The United States had no medical licensing laws at the time. With no official quality controls in place, patients turned to the courts for redress in cases where treatment was unsuccessful, resulting in an explosion of malpractice suits.

Ironically, Mohr says, the best-trained physicians were most often targeted by this litigation both because they had deeper pockets and because they were more likely to use innovative but not yet proven treatments. Physicians themselves then turned to malpractice insurance as a way of avoiding ruinous judgments, but liability insurance instead fueled additional litigation.

Mohr says two legal factors also contributed to the rampant growth of malpractice suits–the rise of contingency fees and the reliance on non-expert juries to determine medical liability.

Contingency fees, he argues, made it possible for lawyers, who had been under fierce competitive pressures of their own, to sustain medical malpractice litigation by subsidizing the system themselves, through the assumption of risk.

Second, Mohr says, the jury system allowed lawyers to present complex, scientific theories to ordinary jurors who were largely unable to assess substantial portions of the evidence put before them.

If the nation’s expensive and irrational system is ever to be reformed, Mohr concludes, these historical dynamics have to be understood and taken seriously.

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