Medical malpractice and the problems associated with it remain an important
issue in the US medical community. Yet relatively little information regarding
the long-term history of malpractice litigation can be found in the literature.
This article addresses 2 questions: (1) when and why did medical malpractice
litigation originate in the United States and (2) what historical factors
best explain its subsequent perpetuation and growth?
Medical malpractice litigation appeared in the United States around
1840 for reasons specific to that period. Those reasons are discussed in the
context of marketplace professionalism, an environment that provided few quality
controls over medical practitioners. Medical malpractice litigation has since
been sustained for a century and a half by an interacting combination of 6
principal factors. Three of these factors are medical: the innovative pressures
on American medicine, the spread of uniform standards, and the advent of medical
malpractice liability insurance. Three are legal factors: contingent fees,
citizen juries, and the nature of tort pleading in the United States. Knowledge
of these historical factors may prove useful to those seeking to reform the
current medical malpractice litigation system.
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