The one great principle of the English law is, to make business for itself.
Charles Dickens (1812-1870)
I often hear people complain that modern American society is absurdly litigious. From the man who sued a beer company for “false and misleading advertising” when he never met the beautiful girls shown in the commercials, to the one who demanded $67 million from his local dry cleaners in compensation for the “mental anguish” he experienced when they lost a pair of his pants, Americans are famous for pointing the finger of expensive blame everywhere but on themselves. But I’m not convinced that this is merely either a modern or an American phenomenon. I know I’m only seeing about a half a percent of the whole picture, but at least from the glimpses I’ve gotten this summer, Victorian England definitely tended towards litigation fever.
This might have been a consequence of a larger trend, though. Over the last five weeks, we’ve discussed some of the steps Victorians took to exert control over their lives and their environments. They threaded the Empire with telegraph wires. They tunneled under the Thames. They initiated a massive exodus of feces. They opened holes in the ground and ripped fuel from the Earth to power their machines. They opened holes in their own bodies and rebuilt those machines, rewrote their stories, and redefined their rules. In general, they controlled; they pushed forward; they dominated. With great power, though, comes great responsibility – and, it seems, great liability. The sign pictured above indicates that the surgeon – not God or bad luck – is responsible if infection develops. As surgery improved, deaths from injuries that would be considered minor today came to seem less a matter of course and more a failure of some kind. I’m not sure how much medical malpractice entered into the legal sphere, but at least the shift in perceived responsibility led in that direction. People also sought to assign blame for the origins of their health problems, not just for the results of their treatments. Accidents were commonplace as the railway system expanded and worked out the kinks (like unsynchronized clocks). In addition to the expected slew of broken bones and deaths, these collisions often resulted in less obvious casualties. Some people appeared unscathed at the time of the accident, but days or weeks later, began to display psychological or “nervous” symptoms – probably the equivalent of what we would call PTSD today. Passengers injured in train crashes began suing railway companies for medical expenses. Psychological victims, though, were in a predicament regarding insurance. Since most of their symptoms were not demonstrable by any physical examination or chemical test, they were difficult to define, and often could not be satisfactorily verified by insurance companies. In order to give patients something more concrete to present for their insurance claims, “railway spine” became the standard diagnosis for this amorphous syndrome. The idea was to give the psychological symptoms a physical cause: a compression of the spine that supposedly threw off the entire nervous system. What intrigues me is that this diagnosis seems to have arisen largely for legal purposes rather than medical ones. This is, to say the least, disconcerting. It would be nice to dismiss this as a historical glitch and assert a sharp break between past and present, but I’m not sure that’s possible. I suspect that medical opinion today is just as contingent on social, political, legal, and cultural influences as it ever was. It is tempting to “translate” (so to speak) old medical terminology into new, as though we have looked at the answers in the back of the book. But we are still far from consensus on our own diagnoses. The most recent edition of the Diagnostic and Statistical Manual of Mental Disorders was the first to omit homosexuality as a psychiatric disorder. Gender identity disorder is still a contested diagnosis. Other disorders (such as autism) exist on a spectrum, further blurring the imagined boundaries between wellness and illness. I suppose this is something like the study of physics. Physicists always wish they could work in a frictionless vacuum, but that kind of ideal situation would never occur in real life. Similarly, we like to think that medicine exists in a vacuum, separate from law (which resides in its own vacuum-sealed chamber), separate from politics, and so on. But nature abhors a vacuum, and this ideal situation bears little resemblance to reality.
[Originally posted 8/2/10]