To fully understand the development of the law of malpractice in the United States, it is essential that the physician first become acquainted with the original sources of our law. These are constitutional law, statutory law, and common law.
Constitutional law is found in the federal and state constitutions and the interpretations given to them by the courts. Statutory law consists of the enactments of the various state legislatures and Congress. Common or case law, as it is frequently called, is law based on judicial decisions and, in all the states with the exception of Louisiana, is the basic source of authority of our courts. Louisiana follows the civil law, which is a form of jurisprudence based exclusively on a code, and the judges decide the cases presented according to the principles of the code.
The common law of England is the remote ancestor of the American law of malpractice.
Sandor AA. THE HISTORY OF PROFESSIONAL LIABILITY SUITS IN THE UNITED STATES. JAMA. 1957;163(6):459–466. doi:10.1001/jama.1957.82970410010018
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