7 - Medical Liability and the Culture of Technology

Summary

During the past thirty years, the United States has witnessed three separate medical liability crises. One common theme has been the outcry for reform and the concomitant failure to effectuate meaningful change. Each crisis has led to incremental reforms, but fundamental changes in how medical professional liability is determined have remained elusive.

Despite all the attention accompanying these crises, one aspect, medical technology, has not featured prominently in the liability debate. This chapter explores the central but often unappreciated role medical technology plays in the recurring malpractice crises. The analysis will attempt to demonstrate several premises. First, culture is the most important factor driving technology development and use. Second, technology is the principal driver of health policy through its impact on cost, access, and quality. Third, technology is the primary driver of negligence law. Fourth, the history of medical malpractice liability is synonymous with the development of medical technology.

In short, the culture of technology drives medical liability. For any malpractice reform effort to be effective, it must take account of how technology influences malpractice liability. Tort reform that fails to deal with the historical and cultural determinants of technology use is unlikely to alter the basic dynamic of the recent malpractice crises.

The chapter adopts the Institute of Medicine's (IOM's) broad definition of technology as “techniques, drugs, equipment and procedures used by health care professionals in delivering medical care to individuals and the systems within which such care is delivered.