Three Distinctive Features of Common Law and the American Legal System: An Introduction for Medical Students and Healthcare Professionals

Healthcare law in the United States grows out of the common-law tradition, and three features of that tradition and of the American legal system shape the legal responsibilities of clinicians. First, judges make law. Reasoning by analogy from case to case, common-law courts develop legal rules through decisions that later courts must follow, as the history of the informed consent doctrine shows. Second, through the jury, ordinary people play an important role in legal decisions. In a malpractice case, it is a jury that decides whether a physician met the standard of care, subject only to limited review by the judge. Last, in the United States all three branches of government make law: legislatures pass statutes, the executive branch issues regulations and executive orders, and courts interpret and develop the law, at both the federal and state levels. Comparison with the civil-law tradition of Germany and France shows what is distinctive about each feature. Healthcare law emerges not as a fixed set of statutes to memorize but as a developing body of law shaped by legislatures, agencies, courts, and juries.