COMMON LAW

To comprehend American medical malpractice law, it is necessary to understand something of the history of the Common Law. British North America inherited our law, as we did our language, from England. As Judge Story once wrote, “Our ancestors brought with them the common law’s principles and claimed it as their birthright.” Most of the European countries originally occupied by the Romans adopted a form of law based on the Roman law codes. That law is called Civil Law. England’s law, on the other hand, was based mainly on Scandinavian (Danish) law with a dose of folk law of undetermined origin thrown in.

Even after the Norman invasion, little was done to change the basic concepts of English law. The principal difference after the invasion was that the Norman kings considered themselves to be the head of the court and to bear the responsibility for the justice rendered by the courts. They also introduced the idea of legal policy reflecting political policy and in particular royal political policy. In other words, these kings viewed the justice system as a political power tool to increase their wealth and control. The courts would forever after be viewed as servants of some economic or social interest.

The system was consolidated by Henry II. By 1240 the baronial/manorial courts were strictly social meetings and held no real legal status. In the shire courts and royal courts, the key features of the common law, the jury and courts of record were in place. These developments were probably the result of multiple compatible factors working in unison even though the reassertion of royal control and power was instrumental.¹ There is no doubt that the royal judges saw a need for a national system of law that was rational and uniform in its application and the feudal court was incompatible with that system. Finally, the idea must have had wide support in the secondary and tertiary layers of aristocracy. It was certainly in their interest to have an objective royal court hear their case rather than the self- interested baron. Though more interested in the bottom line than the strength of the court system, Henry II, one of England’s most competent and professional kings, left England with a strong, enduring system of courts and law that, through accumulated decisions, could build upon itself and adjust to changing times and circumstances.

It was called the Common Law. One should not be deceived by its name. It was not law designed to protect the common man. It takes its name from the fact that it was the law that Henry II made common to all of England. The two forms of law differ significantly.

CIVIL LAW

Civil law is a codified system of law. That is, the law is spelled out in a series of written laws adopted by the jurisdiction. Common Law is largely judge-made law. It may incorporate some statutory elements on specific issues, but even statutes are subject to judicial interpretation. Judges in the Civil Law are academics specially trained for their positions and act as prosecutor, judge, and jury. Civil law is, therefore, inquisitorial in nature and heavily dependent on the written word.

ADVERSARIAL SYSTEM

In contrast, Common Law is an adversarial system in which the oral argument between the parties plays a much larger role. Judges are chosen from the practicing bar and are not usually academics. The judge is essentially a referee and instructs the jury who make the ultimate decision on the merits of the case. In common law the law is made by judges who hear a disputed case on appeal. Those decisions become precedent for future cases. However, higher appellate courts or future appellate courts of the same level can overturn or overrule a prior decision if circumstances change or new information develops. Therefore, change, albeit slow and irregular, is a constant element of the common law.

Under the early common law, cases were more or less confined to one of three categories: Property Law, Contract Law, and Criminal Law. There was little attention paid to compensating the individual for personal wrongs (tort law) for a little over a century. Doctors were therefore immune to suit for what we would call malpractice today.

BEGINNING OF MEDICAL MALPRACTICE IN ENGLAND

Between 1346 and 1381, during the Black (Bubonic) Plague, 50% of the population of Europe and two-thirds of the English population was wiped out by the epidemic.² The loss of manpower was a major blow to the English economy. The people who survived the plague became as important as real property (land) and personal property (including livestock) in the English economy. Therefore, a physician’s mistake that deprived the economy of a worker became important enough to be brought before the courts. Physicians suddenly lost their immunity for practice errors. Actually, it was an even worse scenario, the physician became strictly liable for an unfavorable outcome, and, because there was no tort law (law governing injury to a personal interest), the physician was prosecuted under the criminal law for mayhem. By 1364 it had become obvious that this was too draconian a remedy and two property terms that had been previously used occasionally in livestock cases were introduced to permit civil cases. “Trespass” (trespass by force and arms) was charged for direct injury and “trespass on the case” for indirect injury. New writs were permitted, and cases were brought in royal courts and London’s city courts with alarming frequency fully commensurate with the litigious present.

INITIAL CAUSES OF MALPRACTICE

A search of contemporary documents reveals that in the 14th century cases were brought against physicians with remarkable frequency for charging excessive fees, for keeping the fee despite a failure to cure, for exacerbating the original complaint, medical neglect, mayhem, maiming, and death. The courts dealt with these charges with a combination of fines to redress the financial losses of the patient and to punish the physician as well as imprisonment and forbidding future practice.³ It has been suggested that many of the physicians’ problems stemmed from the practice of physicians to undertake the cure of the patient and not to merely treat the patient.⁴ The medieval patient equated cure with fee, “No cure, No fee!” In the absence of any really effective treatment modalities, this was a natural recipe for disaster.

By 1375 the concepts of fault and standards of care had been introduced, but the malpractice actions went on at an accelerated rate. By 1415 the London guilds had established rules for mandatory consultation and a series of fines for not doing so. In 1417 the Surgeons’ Guild introduced a compulsory malpractice insurance pool.

The high rate of suits continued well into the 17th century. Indigent migrants and criminals were being shipped to North America as indentured servants as early as 1650, and the rate of voluntary migration to North America increased steadily thereafter.