Development of the medical malpractice law and legal instrumentalism in the Antebellum America

Marcin Michalak

Abstract

The establishment of the American Constitution in 1787 was only the first step on the way of constructing a legal system in the newly-created state. The issue concerning adoption of concrete solutions with regard to private law was no less important than the form of the government. Despite the opinions that, after breaking free of the rule of Great Britain, English common law should also be renounced, the arguments for maintaining that law in the newly-established state prevailed. However, multidimensional differences between England and the United States made the direct implementation of common law impossible. That law had to be adopted in such a way as to take into consideration the unique character of the new state. The institutions and principles which conformed to American society were to be adopted, whereas those which did not comply with the character of the new state were to be discarded. One of the interesting examples of the use of law by American judges as a tool for adapting old English common law to the new American reality is the medical malpractice law. In the discussed context, two principles adopted in the area of physicians’ liability for malpractice, the so called locality rule and school of practice doctrine, deserve special attention. The process of creative adjustment of common law norms concerning the liability of doctors for malpractice to the conditions and needs of the American society in the 19th century shows how deeply the factors which are unique in a given country and society influence the form of legal norms, so that they can perform their function as well as possible. The adoption of the locality rule and the school of practice doctrine by American courts in the 19th century demonstrates that, when creating legal solutions based on foreign models, it is necessary to adjust the adopted norms carefully to the conditions and specific character of the environment in which they are to be applied. American judges creating the so-called “school of practice doctrine” and “locality rule” used the law as a tool, an instrument to effectively and rationally regulate the doctor-patient relationship in the American conditions.
Author Marcin Michalak (FLA / DHL)
Marcin Michalak,,
- Department of History of Law
Pages164-190
Publication size in sheets1.3
Book Gałędek Michał, Klimaszewska Anna (eds.): Modernisation, national identity and legal instrumentalism: studies in comparative legal history, vol. 1, Private law, Legal History Library, no. 35, 2020, Brill, ISBN 978-90-04-39528-2, [978-90-04-41727-4], 353 p.
ASJC Classification3308 Law; 3320 Political Science and International Relations
DOIDOI:10.1163/9789004417274_008
Languageen angielski
Score (nominal)75
Score correctionScore increased (at least one author (N) declares Humanities, Social sciences or Theological science)
Score sourcepublisherList
ScoreMinisterial score = 75.0, 12-02-2020, MonographChapterAuthor
Publication indicators Scopus SNIP (Source Normalised Impact per Paper): 2018 = 0
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