Mesopotamian Doctors Had It Rough
By: George Dillard
Tags: Law, History, Medicine, Science

Mesopotamian Doctors Had It Rough

Photo by Piron Guillaume on Unsplash

Imagine being a doctor in ancient Babylon, 3,700 years ago. Your patient has come to you with a rapidly growing tumor; you’ve tried to pray to Gula, goddess of healing, to no avail. You’ve prescribed several elixirs, but they haven’t worked either. So you have no choice but to gather your tools — a knife made of obsidian or metal, modeled on a barber’s razor, some curved thorns and thread to stitch the wound together, and some bandages. You know enough to clean these tools off before you operate. This operation is high-risk for the patient, but it’s also a risky one for you, because you know the law. Your king, Hammurabi, has issued a comprehensive set of laws that govern a number of professions, including yours. The law says that “if a physician makes a large incision with the operating knife, and kills him, or opens a tumor with the operating knife, and cuts out the eye, his hands shall be cut off.”

Were there a bunch of handless former doctors walking around ancient Mesopotamia? Probably not. It’s unclear how often this law was really enforced, since surgeries under these conditions were unlikely to go very well. It may be that doctors simply refused to perform surgeries under most circumstances, as they were so risky for both the patient and the physician. But it’s notable that, in the oldest extant set of written laws, doctors are held responsible for malpractice, with a failed operation meriting the same punishment as theft or assault.

Ancient Egyptian medical tools (CC 4.0)

We don’t have a lot of sources about medical liability in other ancient societies, but it seems that even in the periods of history when medicine was little more than guesswork, physicians have been held to a high standard — although they weren’t often punished as they were in Babylon. The ancient Greeks developed the Hippocratic Oath around 500 BCE, which obliged doctors to “do no harm” to patients. Interestingly, doctors promised in the oath not to perform surgery, “not even on sufferers from stone.” This may have been because surgery was simply too risky, or because surgery was considered to be a separate practice from medicine by the Greeks. In ancient Rome, malpractice law was really property law. Doctors were shielded from punishment for malpractice — unless they had harmed a slave, in which case they might have to pay the owner the value of the person they had killed.

The first known malpractice court case was Stratton v. Swanlond, which took place in England in 1374. In this case, Agnes of Stratton sued her doctor, John Swanlond. Swanlond had promised to surgically repair her mangled hand and, it seems, he failed badly. Agnes sued and, though her case was dismissed over a technicality, it established an important precedent in English law. The judge, John Cavendish, ruled that doctors couldn’t be sued for failed procedures in which they had done their best, but they could be held liable for harm they caused as a result of negligence. Malpractice suits became more common in English law over time, and malpractice became an accepted part of English common law.

The medical field was full of figurative — and literal — snake oil salesmen (PD)

As medicine became more scientific, expectations for doctors rose; going to the doctor went from a dangerous last resort to something people would do with an expectation of being healed. Malpractice suits were rare in the U.S. until the 1830s in the United States, likely because doctors were getting better at their craft and trying new techniques on patients. Before the 1830s, doctors generally treated bad breaks in limbs by simply amputating them, but the new procedures of the nineteenth century led doctors to try to surgically save the limbs. This didn’t always work, and some patients were left with painful deformities or infections. Doctors were also trying out new anesthetics that sometimes killed patients. On top of all this, there were a number of quack physicians out there peddling snake-oil cures that at best were ineffective, and at worst were downright harmful.

Malpractice suits exploded under these conditions, increasing almost 1000% in the 1840s and 1850s. In many cases, lawsuits were encouraged by doctors who wanted to drive out the quacks and clean up the perception of their profession. Doctors also formed the American Medical Association in 1847 to create universal standards for their profession. These standards weeded out some medical frauds, but they also created an opportunity for lawsuits — now that doctors had a clear code, those that didn’t live up to it could be held legally responsible. By the late 1800s, physicians in America had begun to purchase malpractice insurance in order to avoid financial ruin from lawsuits. As the medical profession became more professional over the next century, the number of lawsuits declined. Malpractice insurance was relatively affordable for doctors and lawsuits were rare — until the 1970s.

There was a second American “malpractice crisis” in the 1970s, which threatened to overwhelm the courts and drive doctors out of business. By the 1970s, doctors were widely seen as prosperous, and the existence or malpractice insurance was well known; therefore, people didn’t see much of a problem with suing their doctor if they felt they had been badly treated. Furthermore, the commercialization of American society led people to see medical care as one more commodity they were purchasing; if they didn’t like the results, they had the right to be made whole. New, more technically complex treatments raised people’s expectations for the results of their medical care — and, in some cases, increased the potential for bad outcomes that at least seemed like they were the doctor’s fault. On top of all this, some of the rules around legal liability were relaxed, making it a bit easier to sue. All of this combined to bring about an immense surge in malpractice lawsuits — 90% of the malpractice suits filed between 1920 and 1975 were filed between 1970 and 1975!

Since the 1970s, malpractice insurance has become a major expense for doctors — it has even been hard to procure at all at times. Though malpractice suits have become less common than they were at their 1970s peak, they are far more common than they were a century ago. As doctors have become better trained and have access to more advanced technology, our expectations for them have risen — but we still aren’t quite as strict with doctors as the ancient Mesopotamians were.