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1992 Wis. L. Rev. 1193 (1992)
One Hundred Years of Harmful Error: The Historical Jurisprudence of Medical Malpractice

handle is hein.journals/wlr1992 and id is 1205 raw text is: ONE HUNDRED YEARS OF HARMFUL ERROR: THE HISTORICAL JURISPRUDENCE OF MEDICAL MALPRACTICE THEODORE SILVER' 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. 'Twill be recorded for a precedent, And many an error by the same example Will rush into the state.' I. INTRODUCTION A medical malpractice action is identical in all vital respects to any and every suit sounding in negligence. That simple truth, however, has been lost in a maze of judicial mistakes one century in the making. Consequently, most legal minds identify medical malpractice as a discrete body of law and the medical malpractice suit is thought to proceed from its own set of rules, doctrines, and principles. That fundamental misconception is traceable primarily to nineteenth century courts who built and bequeathed to the common law a host of unfortunate inventions. These include the professional custom stan- dard, the locality rule, the best judgment principle, the expert witness requirement, the common knowledge exception, and special rules concerning the so-called doctrine of res ipsa loquitur. All of these doctrines purportedly followed from some rational design, but historical * B.A. Yale University, J.D. University of Connecticut, M.D. Yale University; Associate Professor of Law, Touro College Jacob D. Fuchsberg Law Center. 1. WILLIAM SHAKESPEARE, THE MERCHANT OF VENICE act 4, sc. 4.

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