While generally regarded as one of our nations finest Presidents, Abraham Lincoln was also a superior trial lawyer. By the time he stopped practicing law in the summer of 1860, Lincoln had been involved in thousands of cases. He had been counsel of record on more than four hundred appeals before the Illinois Supreme Court. A portion of Lincoln's professional efforts were spent defending physicians and litigating issues relating to the practice of medicine.
Prior to the 1830's, actions for medical malpractice were rare. However, starting in the mid 1830's, medical malpractice actions began to become more common. Within a matter of years, the country was experiencing its first medical malpractice crisis. Lincoln was called upon to defend physicians during this time.
In October of 1855, Keziah West sued Dr. Powers Ritchey in Hancock, Illinois, for medical malpractice. Dr. Ritchey had set Mrs. West's wrist after a fracture and dislocation. Dr. Ritchey did not use surgical intervention but applied splints and bandages to the wrist. Unfortunately, Mrs. West's wrist failed to heal to her satisfaction. Mrs. West claimed that her hand was both deformed and unusable. Her list of Dr. Ritchey's deviations from the standard of care included: 1) failure to apply long enough splints; 2) failure to apply wide enough splints; and 3) failure to diagnose the wrist dislocations; and 4) failure to properly follow up with patient after treatment.
In June of 1856, Mrs. West's case against Dr. Ritchey went to trial. Lincoln was not involved in the case at this point, as Dr. Ritchey had yet to retain him. After several days of trial and deliberations, the jury of twelve was hopelessly deadlocked. A hung jury was declared and the case was set down for re-trial at a later date.
In October of 1856, Dr. Ritchey's defense counsel moved for a change of venue from Hancock, Illinois. The case was transferred to Adams County. While medical malpractice claims are not new to the American judicial system, neither is delay. The case was not re-tried until March, 1858, approximately three years after Dr. Ritchey's treatment of Mrs. West. Lincoln was still not involved in the defense at this point. The second trial did not go well for Dr. Ritchey. The jury reached the following verdict on March 25, 1858:
Now come again said parties and jurors aforesaid came also, and the jurors aforesaid upon their oaths do say "We the jury find the defendant (Dr. Ritchey) guilty in manner and form as the said plaintiff hath thereof complained against him and assess the said plaintiff damages by reason thereof of seven hundred dollars."[1]
Defense counsel immediately moved for a new trial. Lincoln and his law partner, William Herndon were retained in the spring of 1858 for Dr. Ritchey's appeal.
Lincoln found himself in the frustrating position of many appellate lawyers. Then as today, new evidence and objections cannot be raised on appeal. Dr. Ritchey's attorneys at trial had failed to introduce key medical evidence. Only five years earlier, Dr. Frank H. Hamilton had published a study of 461 fractures. Dr. Hamilton's study revealed only ten percent of wrist fractures treated healed with "perfect" unity. This evidence would have been tremendously beneficial to Dr. Ritchey, but it was never offered. Lincoln was frustrated. His client had a good defense, but he was blocked from bringing it out in the appellate brief because of defense counsel's omissions at the trial court level. (Id. @ 90) Predictably, the Illinois Supreme Court rejected Lincoln's efforts. Dr. Ritchey was found to have lacked "ordinary skill" in his care of Mrs. West. Dr. Ritchey was ordered to pay Mrs. West $983.35 for damages, costs, and court fees.
Lincoln's loss in the Ritchey case should not be interpreted as being due to a poor understanding of medicine. On the contrary, Lincoln was well versed in the medical issues of his day. Lincoln and Herndon's law library contained some of the best books of the day on medical/legal issues. Principles of Medical Jurisprudence Designed For the Professors of Law & Medicine by Amos Dean (1850) and Commentaries On The Laws Of England by William Blackstone were reference books for Lincoln. Lincoln displayed a grasp of anatomy and forensic medicine during the murder trial of William "Duff" Armstrong. His direct examination of Dr. Charles Parker during this murder trail helped raised reasonable doubt as to the cause of death. Lincoln's defense of Armstrong was successful and resulted in an acquittal.
In 1857, Lincoln assisted the state's attorney in prosecuting Isaac Wyant for the murder of Anson Rusk. The defense counsel argued that Wyant was insane due to chloroform that had been administered to him some months earlier when his left arm had to be amputated. More specifically, it was alleged that after the amputation, Wyant was "ever after morbidly fearful that Rusk would kill him . . . and complained greatly about his head and exhibited many signs of being unsettled in his intellect." (A. Lincoln Esquire: A Shrewd, Sophisticated Lawyer in His Time by Allen D. Spiegel at page 207). To support the "insanity induced by chloroform" defense, six physicians were called to testify. Lincoln countered with Dr. Goodbrake, who was President of the Illinois State Medical Society. Dr. Goodbrake (an ironic name for a man that made part of his living by amputating limbs) was in fact present at the time Wyant receive the chloroform; he testified that an ordinary dosage was administered. Ultimately, the jury found that Wyant was insane and recommended his removal to the State Lunatic Asylum.
Perhaps Lincoln's finest hour as a medical malpractice defense attorney was in his defense of Dr. Thomas P. Rogers and Dr. Eli K. Crothers. In what has been called the "Chicken Bone Case", Lincoln displayed superb skills as a trial counsel.
In the early hours of October 17, 1855, a major fire burnt a significant portion of Bloomington, Illinois. In the mist of buildings burning, a chimney collapsed upon a local carpenter, Samuel G. Fleming. Mr. Fleming suffered two broken femurs. He was treated by Dr. Jacob R. Freese who set the left leg while Dr. Crothers and Dr. Roger addressed Fleming's right leg. Initially Fleming did well, but sixteen days post treatment he began to experience severe pain in his right leg. Unfortunately, when Fleming's dressings were removed all was not well. In the words of Fleming's sister his legs "were as crooked as a ram's horns." [2] The physicians found the legs to differ in length by almost an inch. The splints were adjusted and the legs were re-dressed. Sometime thereafter when Dr. Freese examined Fleming's legs, he found the left leg to be healing properly. The right leg had a "considerable bend at the point of fracture." It was recommended that the femur be re-broken and set again. Fleming agreed to the procedure. Chloroform was given and Dr. Crothers began manipulating the limb and was assisted by Dr. Rogers. Unfortunately, Fleming was not completely anesthetized and began screaming in pain. Fleming, despite the chloroform and pain, he was able to order Dr. Crothers to stop. Fleming's family then put an end to the manipulation. Predictably, Fleming's right leg was deformed and he filed suit against Dr. Crothers and Rogers in March, 1856.
Dr. Crothers retained Lincoln along with several other attorneys for his defense. After two continuances due to the unavailability of witnesses, the case finally came to trial in the spring of 1857. In preparing for the trial, Lincoln had asked Dr. Crothers to teach him about femur treatment and aging. Dr. Crothers used chicken bones to help Lincoln understand certain medical principles. It was a demonstration so useful that Lincoln would repeat it later for the jury.
Fleming's counsel put on fifteen (15) physicians to support the claim of malpractice. Lincoln, along with other members of the defense team, summoned seventeen (17) physicians. The trial became heated when Lincoln cross-examined Fleming. (A. Lincoln Esquire: A Shrewd, Sophisticated Lawyer in His Time by Allen D. Spiegel, pages 128-129):
Lincoln: Can you walk at all?
Fleming: Yes, but my leg is short so I have to limp.
Lincoln: Well! What I would advise you to do is get down on your knees and thank your Heavenly Father, and also these two doctors, that you have any legs to stand on at all.
In his closing argument, Lincoln held up two chicken bones. One bone was from an older bird, while the other was from a younger bird. Lincoln argued that Fleming's bones were more like the older chicken's bones because of his age; thus more brittle. Here was something the jury could understand more easily than medical testimony of bone calcium levels.
The jury deliberated for eighteen hours before the judge found it to be deadlocked. Because of the local predisposition in favor of Fleming, this should be seen as a partial victory. A new trial was ordered. Lincoln continued to work on the case by preparing deposition questions for one of plaintiff's medical experts. Ultimately, the case was settled prior to re-trial. Although the exact terms of the settlement are unknown, Drs. Crothers and Rogers agreed only to pay fees incurred by Fleming which most likely were less than one thousand dollars. This was less than a tenth of Fleming's initial demand, and it speaks to the quality of the defense of the physicians.
Abraham Lincoln's legal career covered a period of major changes to the standard of care for orthopedic injuries. At the start of his career, severe fractures were normally amputated This changed over the span of his legal practice. In 1846, ether was introduced. It was soon thereafter followed in 1847 by the use of chloroform. These anesthetics altered the standard of care for treating fractured bones. Lincoln became conversant with orthopedic principles of his day. The above cases reveal that Lincoln understood that treatment of orthopedic injuries often could not completely restore a patient to pre-injury vitality. Wounds healed in less than optimal ways and the harm to the patient could not always be fully reversed despite the best efforts of physicians. Perhaps this thought lurked in Lincoln's mind when he stated in his second inaugural address of 1865 that the citizens needed to "bind up the Nation's wounds."
Lincoln is properly remembered for his leadership of the Union during the Civil War. His reputation as our greatest President is well deserved. However, we should not forget his superior abilities as a trial attorney representing physicians and litigating medical issues.
[1] "Abraham Lincoln Loses A Medical Malpractice Case . . . " by Spiegel and Kavaler, Journal of Community Health, Vol. 29, No. 1, Feb., 2005 at page 80 citing Adams County Circuit Court Record of March 25, 1858.
[2] "Lincoln And The Chicken Bone Case" American History, Aug. 1998 by Charles Hubbard
