Medical Malpractice Law: Ancient History to Recent Controversies

A Brief History of Medical Malpractice Law

The concept of medical responsibility can be traced back to the Code of Hammurabi, which is an extensive legal document from ancient Mesopotamia. The Code of Hammurabi states that, “If the doctor has treated a gentlemen with a lancet of bronze and has caused the gentleman to die, or has opened an abscess of the eye for a gentleman with a bronze lancet, and has caused the loss of the gentleman’s eye, one shall cut off his hands” (Smith 1931 as cited within Bal 2009). Of course, penalties for malpractice in most modern, developed nations are much more civilized. However, the Code of Hammurabi introduced the concept of holding medical professionals accountable for deaths or injuries that could have reasonably been prevented.

Detail from the Code of Hammurabi

The ancient Romans also had a legal foundation for medical malpractice law. Their first written laws, on the XII Tables, included the concepts of delicts, iniuria, and damnum iniuria datum. Delicts were types of wrongful conduct that involved penalties. Inuria and damnum iniuria datum were two types of delict. Inuria referred to personal injuries, and damnum iniuria datum referred to injury of property, which could include slaves. Inuria only included injuries that were intentionally caused. A person could be compensated for pain of mind or body as well as monetary expenses resulting from the injury. Damnum iniuria datum also included harm caused by negligent actions, but only mandated compensation for economic losses caused by harm to property. For example, if someone’s slave required medical attention as the result of another person’s negligent actions, they could demand payment through damnum iniuria datum. Eventually, this law was expanded to apply to free men in addition to slaves (O’Connel and Carpenter 1983).

Roman law spread throughout continental Europe around 1200 AD, and many countries’ current laws regarding personal injury and medical malpractice derive from Roman origin. English common law was greatly influenced by the Romans, and in turn 19th century English common law had a substantial influence on the American legal system. During the reign of Charles V, a law took form that required medical professionals’ opinions to be taken into account in cases of violent deaths. This served as a precursor to the presence of expert testimony in medical malpractice cases in order to establish standard of care (for more information on standard of care, see “Medical Malpractice in the U.S.”)

Medical malpractice cases began to appear in the U.S. beginning in the 1800s, but it was not until the 1960s that such cases became common and started to influence medical practice. Today, malpractice lawsuits play a major role in shaping the future of care (Bal 2009).

Medical Malpractice in the U.S.

Medical Professionals: Extensive Training, High Standards

In the U.S., medical malpractice is a subset of “tort” law, which is the body of law that deals with civil wrongs. It encompasses categories including negligence, gross negligence, professional negligence, recklessness, and acts of intentional harm. Medical malpractice falls under the umbrella of professional negligence (Kass and Rose 2016).

Medical professionals are held to a higher standard of competence than nonprofessionals. They should have a great deal of knowledge regarding various medical conditions and treatment protocols, and therefore are responsible for providing a high standard of care. Standard of care is defined as what a “reasonable” medical practitioner would have done under similar circumstances. In other words, medical professionals are responsible for using a certain level of knowledge, training, and experience. Medical professionals received extensive training in their field, and can therefore be held to a higher standard than a well-meaning passerby at the scene of an emergency (Bal 2009).

Justification for a Medical Malpractice Lawsuit

Medical malpractice cases are centered around wrongs committed by medical professionals or medical facilities that cause injuries to their patients. An individual may have a medical malpractice case if they, their child, or their dependent has sustained an injury after practitioners committed one or more of these acts:

  • Misdiagnosis or delayed diagnosis
  • An inappropriate choice of treatment
  • Errors in the execution of treatment
  • Medication mistakes
  • Failure to follow up with a patient after treatment
  • Failure to obtain a patient’s informed consent prior to beginning treatment

In a malpractice case, the person suing is called the plaintiff, and the medical professional or organization being sued is called the defendant. In some cases, there may be multiple plaintiffs, and multiple defendants. There are four things a plaintiff and their attorney must prove in order to win a case:

  1. The defendant was responsible for (or had a duty to provide) the treatment or care of the person injured (in other words, the harmed individual was indeed a patient of the defendant).
  2. The defendant behaved negligently because they did not provide the standard of care required. For the jury to determine whether someone has adhered to or deviated from standard of care, medical experts are often called in to testify as to what could have reasonably been expected of the defendant.
  3. The negligence/deviation from standard of care resulted in injury to the plaintiff. Negligent care or behavior is very concerning even if it doesn’t lead to patient harm, because similar actions could harm future patients. However, if it doesn’t cause harm to the plaintiff, it is typically not grounds for a lawsuit.
  4. The injury resulted in measurable damages that merit compensation (Kass and Rose 2016).

Legal Process

Medical malpractice suits are usually filed in a state trial court, unless the case involves federal funding, a military medical facility, or or a Veteran’s Administration facility: then it would be filed in a federal district court. A claim may also be filed in a federal court if the parties involved are from different states, or if there was an accused violation of a fundamental constitutional right.

After a suit is filed, both parties gather information from the other. For example, the plaintiff’s attorney will request their client’s medical records from the defendant. There will then be interrogatory forms (a set of written questions to clarify facts) submitted by each attorney to the opposing party, and depositions (formal meetings in which an individual  –  such as the plaintiff, the defendant, or an expert for either party  –  is questioned under oath). A record of these depositions is taken for potential use in court. Usually, the people who attend the deposition include attorneys for both parties and the court reporter. In some cases, the plaintiff or defendant can also choose to attend to observe, but does not talk or ask questions. Sometimes, the defendant and their attorney will agree to settle the case prior to court  –  that is, the defendant pays the plaintiff a mutually agreed upon amount called a “settlement.”

If the prosecution and defense cannot agree on a settlement, the case will proceed to trial. Medical malpractice trials are almost always trials by jury. If a case does proceed to trial, and the losing party is unwilling to accept the jury’s verdict, they can appeal to a higher court. In some jurisdictions, they can also appeal the amount of a judgement in the same court.

Paying for Attorneys

A good medical malpractice prosecution attorney typically will not collect any money from the plaintiff unless they win a case. In other words, the plaintiff can only have a net gain from a lawsuit, not a loss.

Most doctors and other medical professionals carry malpractice insurance to protect themselves in case of negligence/unintentional injury to their patients. The insurance may even be a requirement for employment within a specific medical group or hospital system. Some states, but not all, have minimum insurance requirements for medical providers. Malpractice insurance will cover both attorney costs and any money given to the plaintiff as the result of a settlement or verdict until it is exhausted, and then the medical provider or facility may be responsible for any excess verdict or judgment against them.

Insurance companies will often allow the defendant to decide whether to agree to a settlement, but some plans state that the insurance agency can settle a claim without the consent of the policyholder (defendant).

“Tort Reform” Measures

Medical malpractice law in the U.S. has generally been left up to the state rather than the federal government. Certain aspects of malpractice regulations can vary widely from state to state. Many states have also adopted recent changes that are referred to as “tort reform” measures. Some of these changes have been taken in response to the criticism that medical malpractice suits lead to “defensive medicine” –  in other words, medical professionals are so concerned about avoiding malpractice suits that they behave in unproductive or even harmful ways.

Some examples of tort reform measures include:

  • Shortening the statute of limitations (the time period in which a plaintiff can pursue legal action)
  • Ending joint and several liability (a situation in which one defendant is responsible for paying all of the damages if other defendants involved in the same case lack the resources to pay)
  • Permitting damages to be paid in installments rather than as a lump sum
  • Putting a cap on damages that can be awarded
  • Requiring an affidavit from a medical expert testifying to the merits of the case before a claim can be filed

However, a study comparing states with tort reform to states without found little evidence that these measures actually stopped doctors from behaving defensively (Waxman et al. 2014). It remains to be seen whether tort reform measures can actually improve medical care, or if they just limit the amount of compensation that a plaintiff can receive to a figure lower than what is necessary to ensure proper care for the injuries they have suffered.

Alternative Dispute Resolution Methods

Somewhere between 210,000 and 400,000 Americans die each year due to a medical error (James 2013); it is now the third leading cause of death in the United States (Makary 2016). Many more sustain injuries that leave them with lifelong disabilities. Moreover, a recent national survey revealed that 21% of Americans have personally experienced a medical error, and 31% have been involved in the care of a family member or friend who did. As discussed above, tort reform measures may be effective in limiting the number and success of malpractice lawsuits, but don’t necessarily address the underlying issue of the malpractice epidemic in America.

Many medical and legal professionals agree that all parties involved would benefit by a system involving open communication, learning from mistakes, and conflict resolution without adversarial procedures.

Alternative Dispute Resolution (ADR) models attempt to accomplish just that. Unlike the traditional medical culture in which physicians and other professionals are discouraged from acknowledging their mistakes or discussing what happened with the injured patient/their family, ADR models promote straightforward communication and peaceful resolution.

The Lexington, Kentucky Veterans Affairs (VA) Medical Center was one of the first to introduce such a program. Non-economic benefits to medical professionals included the promotion of ethical, honest behavior, and benefits to patients and their loved ones included a truthful account of what occurred, an apology, and potentially an offer of compensation. The VA also benefited financially – it became the VA hospital with the lowest malpractice payouts. Also, their average length of cases decreased from 2-4 years to 2-4 months.

The first non-VA hospital to adopt such a program was the University of Michigan’s (U of M’s) health care system, which introduced the Michigan Model in 2001. Payments to wronged patients are made on behalf of the institution itself, so they are not reported to the National Practitioner Data Bank (such a report would affect a physician’s reputation). In this way, U of M protects its physicians and encourages them to own up to any mistakes. For more information on the Michigan Model for responding to medical errors, and how it has benefited both patients and medical professionals, click here.

ADR models are spreading and may vastly improve the legal landscape, but they also necessitate a shift in medical culture. Patients may receive smaller  payouts than they would in the traditional adversarial legal system at trial. However, they may also get compensated more efficiently, by reducing the cost of proceeding through lengthy litigation and trial.  In addition, patients in this model may feel that they have more honest interactions with their care providers (Kass and Ross 2016).


Medical malpractice litigation has evolved dramatically since the Code of Hammurabi was written. Certain fundamental principles  –  namely, the responsibility of medical professionals to prevent unnecessary injury and death – remain unchanged. However, the legal landscape is constantly shifting. Major controversy surrounds how to best improve medical malpractice law and hospital culture so that medical professionals can truly focus on providing the best care to their patients. This was the idea behind many tort reform measures, but it remains unclear whether these changes actually improved patient care, or just stopped patients from obtaining the compensation they needed and were entitled to. ADR may be a win-win solution for patients and medical professionals, increasing case efficiency and decreasing animosity between opposing parties.

Michigan Birth Injury Attorneys Helping Children Since 1997

Birth injury is a difficult area of malpractice law to pursue due to the complex nature of the medical records. The award-winning birth injury attorneys at ABC Law Centers (Reiter & Walsh, P.C.) have decades of joint experience with birth injury, hypoxic-ischemic encephalopathy (HIE), and cerebral palsy cases. To find out if you have a case, contact our firm to speak with one of our lawyers. We have numerous multi-million dollar verdicts and settlements that attest to our success, and no fees are ever paid to our firm until we win your case. We give personal attention to each child and family we help, and are available 24/7 to speak with you.

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  • Makary, Martin A., and Michael Daniel. “Medical error-the third leading cause of death in the US.” BMJ: British Medical Journal (Online) 353 (2016).
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