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A Review of the Basis of Medical Responsibility
That a physician maintains a duty and thus an
obligation to his/her patient is not a new concept. Writings on Medical
Responsibility are traceable back over 4,000 years. The Code of Hammurabi,
2030 BC provided:
"If the doctor has treated a gentlemen
with a lancet of bronze and has caused the gentleman to die, or has
opened the 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 Origin & History of Hebrew Law, (1931) 211, 212;
Hughes v. State Board, (1926) 162 GA 246, 134 SE 42, 49.]
Note however, if the patient were a slave and the
slave lost his life due to the wrongful conduct of the surgeon, then the
penalty was furnishing the master with another slave. In those days, the
duty to the patient had a direct relation to the social status. If the
physician made a mistake, and a loss of life occurred, he paid a fixed
Later, the Egyptians tempered this rule. If the
physician followed an established means of treatment for a disease, and
an unfavorable result occurred, he was exonerated. But if he departed
from the acceptable procedure and treatment, and the patient had ill results,
then the doctor was found at fault, and the penalty could be severe.
While the "practice of medicine" dates
from the days of Hippocrates (400 B.C.), we are unaware of any writings
of that day that dealt with the physician's conduct and responsibility
in relation to his patient.
However, the Greeks must have had some recognition
of a duty owed by the physician to his patient for Plutarch tells the
story of Glaucus, a physician of Ephesus, who left a sick man, and went
to the fields. In his absence the man died because of taking excessably
of food. Alexander condemned the doctor to death for a breach of professional
duty. [Charles Greene Cumston, Laws Governing Civil Malpractice in the
Middle Ages, 15 Green Bag, 409 (1903).]
In the Roman Law, malpractice was a recognized
wrong. When Roman Law expanded and was introduced into Continental Europe
around 1200 A.D., a law for the regulation of the practice of medicine,
including the control of drugs, was promulgated in 1240 by Emperor Fredrick
In 1532, during the reign of Charles V, a law
was passed providing that the opinion of medical men should be formally
taken in every case of violent death. Thus, there came to be developed
standards by which to judge the knowledge and skill of a physician, who
was to be held responsible, not only for intentional fault, but also for
negligence in the practice of his skill.
After the Norman Conquest in 1066, came the development
of the English Common Law, and during the reign of Richard Coeur de Lion,
at the close of the 12th century, official records were kept in the Courts
of Common Law and the Plea Rolls. From these records down to the present
time, there is an unbroken line of decisions concerning medical malpractice.
One of the earliest recorded cases involving medical
malpractice in the English Law was Everad v. Hopkins, (1615) 80 English
Reports 1164. Sir Edward Coke decided an action against a physician for
negligence. Plaintiff's master had employed a physician to treat his servant.
No contract was entered with the patient. However, it was found that "unwholesome
medicine" had been employed, which caused the servant to become more
ill. Lord Coke said that of course the master could maintain an action
upon his contract, but the servant not being a party could not sue thereon.
However, the opinion was stated that the servant, in his own right, could
have an action on the case for the damages done by the treatment.
Thus, a legal obligation devolved upon the physician
because of the universal demands put forward by society for its own protection.
A review of the past legal history of medicine is important to understand
the nature of the relationship of responsibility of the healer to his
patient. Suffice it to say, since the first cases in which an individual
prevailed against a doctor in court, the stigma for wrongdoing has attached
to the doctor found culpable. This is one of the reasons that fellow-physicians
were for so long unwilling to testify on behalf of those harmed by a fellow
physician's wrongful conduct. Indeed, to a certain extent, the "conspiracy
of silence" still exists today.
If you or someone you know has been injured
as the result of medical malpractice or professional negligence,
you need the assistance of The Scarlett Law Group.
today to speak with a California Personal Injury Attorney.