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The Malpractice Crisis Turns 175: What Lessons Does History Hold for Reform?


The widespread perception of a medical liability crisis is anything but new. In fact, the emergence of malpractice litigation as a common feature of American jurisprudence and the sense of legal siege in the medical community date back more than 175 years to the 1830s. Several factors have been identified as possible causes. For the most part, these factors relate to changes in medicine and in society at large as America entered the Industrial Revolution. They can be grouped into three broad categories: advancing technology, greater standardization and oversight of practice, and expanded professional autonomy. Reform efforts to date have largely ignored this historical context. Perhaps such efforts would alleviate the perennial sense of crisis more effectively if they took these longstanding underlying features of American medicine into account. The first two factors have played instrumental roles in improving the quality of care, making them less than appealing targets for change. However, the third has led to a culture of entrepreneurship among physicians with no apparent clinical benefits. Therefore, the nature of professional autonomy, especially as it relates to the business structure of medical practice, may represent the most fruitful avenue for effectuating meaningful change in a perceived crisis that has persisted for almost two centuries.