By R. Blake Brown
Every historian hopes that their work will engage and interest the public. However, when I told friends and family the topic of my first book – a history of the jury system in nineteenth-century Canada – I was often met by polite smiles or half-hearted statements along the lines of “Oh…that’s ‘interesting’.”
I received better responses when informing people of the topic of my second book, which examines the history of gun control in Canada. Almost everyone – whether they be cab drivers, friends at the curling club, academic colleagues, relatives, high school classmates, or security staff at archives – expressed interest in the topic. It became apparent to me that most people had an opinion about gun control, even if they did not own a firearm or had never been affected by gun violence.
Telling people that I am researching and writing a history of medical malpractice law in Canada from the late nineteenth century elicits a different response. Sometimes people respond by sharing their opinions about malpractice, but, more often, they share their stories of poor medical treatment. Some stories are about their own experiences with the medical system; others are stories of friends, neighbours, or family members who felt they had been failed by the medical system in some way.
Many of these stories did not create legal liability on the part of the hospitals, doctors, nurses, dentists, or chiropractors involved as Canadian courts do not expect medical professionals to guarantee cures or achieve the highest standard of medical care. Cumulatively, however, these stories emphasize to me the importance of writing a history of medical malpractice to help us understand the development of the legal rules that now determine who can, and cannot, sue successfully for negligent treatment.
Scholars have paid little attention to the historical development of medical malpractice law in Canada. Until recently, the only published works that dealt with the subject in any detail were a short case study, and a history of the largest medical defence organization in Canada written by a medical student. This is not the case in the United States, where several scholars have investigated the development of American medical malpractice law in some detail.
In the Osgoode Hall Law Journal, I recently provided a survey of when and why malpractice first emerged as an issue in English Canada. I suggest that the medical profession considered malpractice to be an ‘American problem’ until the last third of the nineteenth century, when doctors began to rail against a perceived increase in litigation. Physicians claimed that lawsuits damaged reputations and forced them to spend lavishly on defending themselves with little chance of recovering their legal costs from most plaintiffs. Doctors blamed lawyers for drumming up spurious lawsuits, and argued that jurors tended to side with plaintiffs.
Other factors encouraged litigation beyond those identified by doctors. Medical professionals in rural areas sometimes avoided lengthy travel, leading to allegations of malpractice on the ground doctors had been inattentive. Some physicians may also have encouraged lawsuits against local competitors. In addition, medical advances and late-nineteenth-century claims to professionalism contributed to higher patient expectations for good outcomes, especially in orthopaedics – the specialty that involved many of the reported instances of malpractice in the period.
In addition to writing an overview of the changes in malpractice law, I’ve also begun publishing contextualized case studies to drill down to see if my broader claims hold up under closer scrutiny. For example, in an article in the Journal of the Canadian Historical Association Journal Magen Hudak and I examine a case from Truro in the 1930s. The litigation arose when a woman awoke from surgery to find that she had been badly burned by hot water bottles meant to keep her warm. The study demonstrates how changes in technology and surgical procedures both created situations that spurred malpractice claims, and made it difficult for injured patients to prove medical negligence because they had been unconscious when the key events occurred.
A second case study, forthcoming in the Canadian Bulletin of Medical History, examines litigation that concerned issues of consent in advanced surgeries. In Marshall v. Curry (1933) a master mariner from Nova Scotia sued for $10,000 in damages for negligence and assault after he underwent a surgery to address a hernia and awoke to find that his doctor had removed his left testicle. This case study considers why these cases became more common by the early twentieth century, teases out the changing law of consent, and suggests what the case tells us about judicial attitudes towards patients and doctors.
My article in Acadiensis tells yet another story: the effort of a mining engineer in New Brunswick, John B. Key, to sue when his doctor visited him infrequently to address severe frostbite to his hands and feet. The litigation highlights both the challenges patients faced suing doctors in the last third of the nineteenth century and the litany of concerns doctors expressed about the treatment they received at the hands of the justice system, unhappy patients, and local medical competitors. The case went to trial three times – juries in two found in favour of the plaintiff, while a third the jury could not reach a verdict. In one trial, a St. Andrews jury granted the largest damage award given in any malpractice suit in British North America/Canada during the 19th century.
Collectively, these case studies add to our understanding of the cultural forces affecting the law in the late nineteenth and early twentieth centuries, show how individuals navigated legal processes, demonstrate the complexity and nuances of some malpractice disputes, and shed light on the attitude of the medical profession to efforts of patient-plaintiffs to use the law to keep doctors accountable. These were important subjects a century ago, and a full understanding of the development of today’s medical malpractice rules means that the stories of these historic cases need to be told.
Blake Brown is Professor of History and Atlantic Canada Studies at Saint Mary’s University, and an Adjunct Professor at the Schulich School of Law at Dalhousie University. He is a co-author with Philip Girard and Jim Phillips of A History of Law in Canada, Vol. 1: Beginnings to 1866 (University of Toronto Press, 2018).
 Peter J. Mitham, “‘Very Truly and Undisturbedly Yours’: Joseph Workman and a Verdict of Malpractice against John Galbraith Hyde,” Canadian Bulletin of Medical History 13, no. 1 (Spring 1996): 139-49; Iain McCormick, Practical Sympathy: The Malpractice Trial of Dr. J.M. Conerty and the Formation of the Canadian Medical Protective Association (Ottawa: Canadian Medical Protective Association, 2002).
 For examples see Kenneth Allen De Ville, Medical Malpractice in Nineteenth-Century America: Origins and Legacy (New York: New York University Press, 1990); James C. Mohr, Doctors and the Law: Medical Jurisprudence in Nineteenth-Century America (New York: Oxford University Press, 1993); Neal C. Hogan, Unhealed Wounds: Medical Malpractice in the Twentieth Century (New York: LFB Publishing, 2003).