In lieu of an abstract, here is a brief excerpt of the content:

THE DEVELOPMENT OF THE PRINCIPLES OF MEDICAL MALPRACTICE IN THE UNITED STATES LOUIS B. HARRISON* MELVIN H. WORTH, JRJt and MICHAEL A. CARLUCCIt I. Introduction It is quite a rare individual who is currently undertaking the study or practice of medicine who has not or will not be threatened with a suit for malpractice. Year by year the numbers of malpractice claims rise. Currently , our courts and arbitration tables are inundated with such claims. Yet, despite the widespread interest in the problem, the medical literature is barren on the basic principles and required elements of a successful malpractice claim. We thought it would be useful to study the evolution of the four basic components to a suit for malpractice. This will serve to enhance our understanding of what the courts define as negligence and may even help to protect us from unnecessary claims. Before presenting these four components, it is important to be aware of certain elements of law. There are three principal sources of law in our country: constitutional, statutory, and common law. Constitutional law is derived from the United States Constitution and the individual state constitutions and from the interpretations of its guidelines by either federal or state courts. Statutory law is derived from bills enacted either by state legislatures or by the United States Congress. The precepts of the common law are put forth from cases heard in state courts, with precedents established by previous cases in the same state that undertook the same or a similar legal question. In this way, each state develops a body of law on a comprehensive range of issues, and the decisions of a court on any common law will be based on the precedents set by the decisions of earlier courts in the state. Indeed, the concept of The authors thank llene J. Harrison for her assistance in preparing and reviewing the manuscript. *Hunter Radiation Therapy Center, Yale-New Haven Hospital, 60 Davenport Avenue, New Haven, Connecticut 06504. +SUNY Downstate Medical Center, Brooklyn, New York 11203 and Department ot Surgery, Staten Island Hospital, New York.©1985 by The University of Chicago. All rights reserved. 003 1-5982/86/290 1-0453$01 .00 Perspectives in Biohgy and Medicine, 29, 1 ¦ Autumn 1985 \ 41 stare decùL· has been established, whereby decisions of a higher court must be followed by lower courts hearing cases on the decided issue. In practice, if a court is faced with an issue for which there is no precedent in the state, it traditionally looks to other states and the precedents set there. The central elements of medical malpractice cases are based on common law. At times these elements may be altered by statutory law, but frequently the common law elements dominate. Therefore, to look at the evolution of malpractice theory in this country, one needs to look back at the landmark cases in history that set forth the basic principles that are now being followed. In doing this, and by studying the actual case situations that led to the claim of malpractice, one gains not only a comprehension of what constitutes negligence but also a feeling for how the courts view many common medical situations. Through an understanding of these basic principles and their application, the physician is better equipped to answer a claim, and even to prevent one from ever being made. Even though some of the oldest cases are no longer directly quoted, they still serve to set important guidelines for other more recent cases that are often quoted. One also finds that their case situations still have relevance to current case situations. The overwhelming majority of malpractice claims are based on the tort of negligence. Tort law, a sometimes elusive concept, can best be understood as a creation of the common law meant to give rise to duties of conduct that are enforceable by law. These duties often are reflective of social policy in that certain behaviors are thought better than others. Thus a physician who deviates from a medically recognizable standard of practice may be liable to an individual who is injured as a result of this deviation. Tort law, then, protects the interests of society as a whole. This is...


Additional Information

Print ISSN
pp. 41-72
Launched on MUSE
Open Access
Back To Top

This website uses cookies to ensure you get the best experience on our website. Without cookies your experience may not be seamless.