In analyzing the factors that have tended to limit litigation on medical experiments, it becomes evident that, until recently, there have been relatively few medical malpractice lawsuits filed for any type of medical negligence. One reason was that, in many states, hospitals were immune to lawsuits; this prevented a large number of lawsuits, even though patients may have been injured. A second factor that limited lawsuits was the conspiracy of silence. It used to be almost impossible to find an expert witness to testify in a medical malpractice lawsuit. This was due partly to peer pressure, and partly to more direct pressures, such as loss of hospital privileges, loss of insurance coverage, or expulsion from professional societies. Today, it is possible for a plaintiff to get an expert witness, although the witness may be from outside the community.
The effect of these two factors has been to make medical malpractice litigation (except in egregious circumstances) a relatively recent type of litigation. This is particularly important when the "generation time" of a lawsuit is considered. The generation time of a lawsuit is the time between filing the lawsuit and final judgment. This tends to be quite long in malpractice litigation because of the complexity of the facts involved. In most urban areas, it takes from two to four years to get to trial on a malpractice suit. The appeal process can add another two years to this period, making the time from filing to appeal four to six years. This delay is very significant because lawyers review only cases that have been ruled on by the appeals courts. This means that, if a plaintiff "discovers" a new theory of law, it will be from four to six years before the theory is widely known.
Thus, the evolution of legal theories is a lengthy process. Attorneys are only beginning to make use of legal theories first broached 20 to 30 years ago. Hospital liability for the actions of physicians is a good example. This theory of liability was first used over 15 years ago, but only very recently have suits based on the theory begun to appear with any regularity. this generation-time effect is apparent in the ever-increasing number of malpractice lawsuits.
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