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Article
May 31, 1941

LEGAL RESPONSIBILITY FOR MEDICAL MALPRACTICE: III. FORGOTTEN ANCESTORS OF THE AMERICAN LAW OF MEDICAL MALPRACTICE

Author Affiliations

Member of the Bar of the United States Supreme Court BOSTON

JAMA. 1941;116(22):2490-2494. doi:10.1001/jama.1941.62820220002009
Abstract

In Hodgson v. Bigelow, 1939 (7 Atl. [2d] 338), the Supreme Court of Pennsylvania held that a physician's failure to give tetanus antitoxin for a "puncture" wound may constitute civil malpractice. In tracing the genealogy of this important American decision I found its early ancestors to be of English blood.

In the year 1553, Anthony Fitzherbert1 published his "Natura Brevium," in which is contained the first intimation of the novel principle that one may become liable to another for negligent conduct which constitutes no breach of contract. This augury of a new basis in English law for fixing liability on careless conduct not only presaged the monumental development of tort law, which rose to a position of legal preeminence with the advent of the industrial revolution; it pointed out the way for modern doctrines of medical responsibility. One finds that the following passage which is quoted recurs in the

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