One Hundred Years of Harmful Error: The Historical Jurisprudence of Medical Malpractice

In this Article, Professor Silver examines the origins of present-day malpractice law. He begins by noting that negligence and medical malpractice as the common law now knows them made their debut in the nineteenth century although their roots lie deep in the turf of trespass and assumpsit. He argues, however, that toward the turn of the century several episodes of linguistic laziness purported to produce a separation between negligence and medical malpractice so that the two fields are conventionally thought to rest on separate doctrinal foundations. According to Professor Silver, historically based scrutiny of medical malpractice and its ties to negligence reveal that any differentiation between the two bodies of law arose solely by accident; the distinction is devoid of rational basis and serves only to confound and confuse. Thus, he concludes, the common law, through its own devices or those of our legislatures, should be forced to renounce it