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and the injury or loss sustained met specific conditions.3 If the terms of the
writ were not met, a remedy was unavailable.
So it was with the first reported medical malpractice casean action
against a physician for trespass in 1374. The case was before the Kings
Bench where a plaintiff alleged that the defendant-surgeon had negligently
treated and injured his hand.4 The court indicated that the surgeon would
be liable for failure to properly treat the patients hand in a competent
manner but barred the suit on the ground that it had been pled in trespass
and not in writ of trespass vi et armis. Alas, contemporary theory failed our
medieval plaintiffs injured hand.
Before the work of Sir William Blackstone,5 the common law was
organized by forms of action. Lord Blackstone and later treatise writers
sought to establish doctrinal order within the English common law; however,
these classifications were superimposed over the writ system.6 The treatise
writers developed classificatory doctrines that organized the different areas
of the common law into regulatory schemes that were comprehensible to
lawyers. If there was ever chaos in a body of law, the law of torts in medieval
England is exemplary. The old forms of action proved to be ineffective in
achieving compensation for personal injury and the courts and
commentators of the period developed the form of action trespass in a similar
case, which is the ancestor of negligence.7
Still, the law of torts went undeveloped for centuries. It was not until the
advent of the industrial revolutionespecially the railroadsthat
humankind invented machines that could consistently cause serious injury.
Shortly thereafter, jurists and scholars sought to reinterpret tort law to meet
the demands of industrialization. In 1881, Oliver Wendell Holmes wrote his
classic treatise on the common law, which clarified the law of torts
considerably.8 All of these scholars brought theory to the service of making
tort doctrine responsive to the exigencies of the modern industrial state.
3. See F.W. MAITLAND, EQUITY: ALSO, THE FORMS OF ACTION AT COMMON LAW: TWO
COURSES OF LECTURES 34285 (A.H. Chaytor & W.J. Whittaker eds., 1929).
4. The Surgeons Case, Y.B. 48 Edw. 3, fol. 6, Hil. pl. 11 (1374) (Eng.), reprinted in C.H.S.
FIFOOT, HISTORY AND SOURCES OF THE COMMON LAW: TORT AND CONTRACT 82 (1949); see also
JOHN BAKER, BAKER AND MILSOM SOURCES OF ENGLISH LEGAL HISTORY: PRIVATE LAW TO 1750, at
402 (2d ed. 2010) (citing the case as Stratton v. Swanlond); Theodore Silver, One Hundred Years
of Harmful Error: The Historical Jurisprudence of Medical Malpractice, 1992 WIS. L. REV. 1193, 1196
(citing, among other sources, Allan H. McCoid, The Care Required of Medical Practitioners, 12
VAND. L. REV. 549, 550 (1959); C. Joseph Stetler, The History of Reported Medical Professional
Liability Cases, 30 TEMP. L.Q. 366, 367 (1957)).
5. WILLIAM BLACKSTONE, COMMENTARIES ON THE LAWS OF ENGLAND (Univ. of Chi. Press
1979) (17651769).
6. See James Gordley, The Common Law in the Twentieth Century: Some Unfinished Business, 88
CALIF. L. REV. 1815, 182128 (2000).
7. Charles O. Gregory, Trespass to Negligence to Absolute Liability, 37 VA. L. REV. 359, 363
(1951) (internal quotation marks omitted).
8. See O.W. HOLMES JR., THE COMMON LAW (1881).
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9. Richard A. Epstein, The Historical Origins and Economic Structure of Workers Compensation
Law, 16 GA. L. REV. 775, 77576 (1982).
10. See KENNETH ALLEN DE VILLE, MEDICAL MALPRACTICE IN NINETEENTH-CENTURY
AMERICA: ORIGINS AND LEGACY 65113 (1990); Jay Katz, Foreword to ANGELA RODDEY HOLDER,
MEDICAL MALPRACTICE LAW, at v, vvi (2d ed. 1978).
11. See PAUL STARR, THE SOCIAL TRANSFORMATION OF AMERICAN MEDICINE 1920 (1982).
12. Id. at 33847, 36870.
13. See Michelle Huckaby Lewis et al., The Locality Rule and the Physicians Dilemma: Local
Medical Practices vs the National Standard of Care, 297 JAMA 2633, 2634 (2007) (describing most
courts rejection of the locality rule); see also Randall R. Bovbjerg, Legislation on Medical
Malpractice: Further Developments and a Preliminary Report Card, 22 U.C. DAVIS L. REV. 499, 50203,
52829 (1989) (noting the increase in malpractice claims during this period).
14. Eleanor D. Kinney, Malpractice Reform in the 1990s: Past Disappointments, Future Success?,
20 J. HEALTH POL. POLY & L. 99, 10102 (1995).
15. AMS. FOR INS. REFORM, MEDICAL MALPRACTICE INSURANCE: STABLE LOSSES/UNSTABLE
RATES 2007, at 15 (2007), available at http://www.insurancereform.org/studies/
StableLosses2007.pdf.
16. See Anupam B. Jena, Seth Seabury, Darius Lakdawalla & Amitabh Chandra, Malpractice
Risk According to Physician Specialty, 365 NEW ENG. J. MED. 629, 62932 (2011); Bovbjerg, supra
note 13, at 50406 & fig.1.
17. See FRANK A. SLOAN & LINDSEY M. CHEPKE, MEDICAL MALPRACTICE 8797 (2008).
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advocates of tort reforms, such as damage caps, that address the frequency
or severity of malpractice claims.18
Todays changing healthcare sector calls for new thinking about
medical malpractice liability rules, just as social changes in times past called
for changes in tort law and theory. It is the duty of legal scholars to examine
the effectiveness of existing rules in a changed environment. An example of
how theory can be responsive to changing realities is the application of
enterprise liability to the healthcare sector in the 1990s.19 In the 1970s and
1980s, medical practice was transformed from a system of independent
contracting physicians with hospital medical staffs to the organization of
medical providers in integrated delivery systems.20 Enterprise liability offered
a more rational tort regime for this delivery-of-care structure.
In more recent years, developments occurred that have further changed
the medical malpractice landscape. First, the patient-safety movement, due
to its emphasis on the usage of industrial engineering to prevent medical
injury, has changed the way healthcare providers and insurers think about
medical injury. Since the late 1980s, institutional healthcare providers have
adopted approaches of healthcare providers. The second important
development was the application of the theories of Total Quality
Management and Continuous Quality Improvement (TQM/CQI),
developed by William E. Deming21 and Joseph Juran,22 from industrial
quality science.23 According to TQM/CQI theory, quality management
should strive to reduce statistical variation in the production process,
thereby improving production quality to a level that is uniform and
predictable, which will increase the likelihood that customer expectations
are met.24 Since the 1990s, data-driven TQM/CQI theory and practice has
become an integral part of quality assurance and improvement concepts in
the healthcare field.
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25. INST. OF MED., TO ERR IS HUMAN: BUILDING A SAFER HEALTH SYSTEM (Linda T. Kohn et
al. eds., 2000).
26. Id. at 31.
27. See id. at 6970.
28. INST. OF MED., PATIENT SAFETY: ACHIEVING A NEW STANDARD FOR CARE 26 (Philip
Aspden et al. eds., 2004).
29. See supra notes 1416 and accompanying text.
30. Eleanor D. Kinney, The Potential of Captive Medical Liability Insurance Carriers and Damage
Caps for Real Malpractice Reform, 46 NEW ENG. L. REV. 489, 49598 (2012).
31. Id. at 491.
32. GRANT GILMORE, THE DEATH OF CONTRACT 4748 (1974).
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39.
40.