From ancient healing to modern litigation: a historical journey through medical negligence and tort law

Milad Mashayekh; Mahdi  Abbasi Sarmadi

doi:10.18502/jmehm.v18i19.20604

Milad Mashayekh Assistant Professor, Department of Law, University of Kashan, Kashan, Iran.
Mahdi Abbasi Sarmadi Associate Professor, Department of International Law, University of Kharazmi, Tehran, Iran.

DOI: https://doi.org/10.18502/jmehm.v18i19.20604

Keywords: Medical negligence; Medical malpractice; Tort law; History of medicine; Bolam test.

Abstract

This article traces the historical evolution of medical negligence from ancient outcome-based penalties to modern tort law. Employing a historical-analytical method, it examines primary legal texts—from the Code of Hammurabi to landmark cases like Bolam and Bolitho—and secondary sources to analyze this transformation. The findings reveal a shift from ancient codes that penalized results, through medieval guild regulation, to the common law's establishment of a duty of care and a professionally defined standard subject to judicial scrutiny. Modern developments, such as the rise of informed consent and defensive medicine, illustrate tort law's ongoing adaptation to the complexities of healthcare. The conclusion underscores that this journey reflects evolving societal expectations for reasonable medical care, balancing patient rights with clinical realities. Understanding this history is vital for contemporary debates on patient safety and professional accountability, pointing to future research into non-Western traditions as well as to challenges such as artificial intelligence.