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A REVIEW OF THE BASIS OF MEDICAL RESPONSIBILITY
- “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 penalty.
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 II.
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.
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