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August 16, 2000

The Past and Future of Medical Malpractice Litigation

Author Affiliations

Stephen J.LurieMD, PhD, Contributing EditorIndividualAuthorPhil B.FontanarosaMD, Executive Deputy EditorIndividualAuthor

JAMA. 2000;284(7):827-829. doi:10.1001/jama.284.7.827

To the Editor: Dr Mohr's1 survey of the historical bases of the origin, perpetuation, and growth of US medical malpractice litigation identifies several factors with continued relevance to the future of such proceedings.

Modern parallels of the developments underlying the emergence of medical malpractice in the 1840s suggest that complementary and alternative medicine (CAM) may soon experience its own "malpractice crisis." Medical malpractice emerged in the mid-19th century following a period of increased religiosity, greater popular attention to physical fitness and health, and food reforms—all phenomena with contemporary analogues. Similarly, practitioners from a wide variety of disciplines purveyed services in both periods, although the "regulation by market" of the early 1800s ("marketplace professionalism") is now largely limited to CAM. The development of medical practice standards in the 1840s and 1850s (eg, definition of a physician's duty of care to the patient)—the sine qua non for the original appearance of medical malpractice litigation—may have a contemporary analogue in recent scientific studies of complementary therapies.2 Notwithstanding these historical similarities, malpractice litigation against CAM practitioners may not parallel the course of traditional medicine3: studies may discredit some disciplines, complementary therapies may not be amenable to evidence-based practice guidelines,4 their practitioners may not have sufficiently "deep pockets" to justify lawsuits, and patients choosing CAM may be less likely to litigate because of a perceived closer relationship to their practitioners or greater personal responsibility for their choice of therapy.

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