The History of Medical Malpractice: From Hammurabi’s Code to Modern Law

Modern doctors complain about malpractice insurance premiums and endless paperwork.

In ancient Babylon, a bad outcome in surgery did not mean a lawsuit.
It meant the court might cut your hands off.

Around 1750 BC, under the Code of Hammurabi, if a Babylonian surgeon used a bronze lancet on a high-status patient and the patient died or went blind, the doctor’s hands were cut off. No appeal. No defence lawyer. No professional indemnity policy to step in.

This is one of the earliest examples of medical malpractice law: a ruler deciding what happens when medical treatment goes horribly wrong.

What was the first medical malpractice law?

The first clearly recorded medical malpractice rules appear in the Code of Hammurabi (c. 1750 BC). The code sets fixed surgical fees and brutal penalties, including cutting off a surgeon’s hands if a noble patient dies or is blinded. It is an early, strict-liability “standard of care” law in stone.

Key Takeaways

• Hammurabi’s Code is one of the earliest examples of doctors being held legally responsible for bad outcomes.
• The system used strict liability: if the patient died after surgery, the doctor was automatically punished.
• Surgery came with a fee schedule based on social class, and penalties only for certain patients.
• Modern medical malpractice law shifted punishment from physical mutilation to financial compensation, negligence tests and professional liability insurance.
• The fear that doctors can harm as well as heal has shaped everything from tort law to malpractice insurance and standard of care guidelines today.

Surgery on Stone: Hammurabi’s Rules for Doctors

On a tall black stone stele, King Hammurabi carved hundreds of laws. Hidden among rules about trade, marriage and property are a handful aimed directly at doctors.

One law, usually numbered 218, can be summed up like this:

• If a physician performs major surgery with a bronze knife on a noble and the patient dies or loses an eye, the physician’s hands are cut off.

A few related laws add:

• If the surgery is successful, the doctor gets a fixed fee paid in silver.
• The fee depends on the social status of the patient.
• If the patient is a slave, the owner pays, and the penalty for killing the patient is financial, not physical.

It is a simple system, but it hits all the main malpractice ideas:

• The law recognises surgery as a risky, specialised act.
• It sets rewards for success and liability for failure.
• It openly ties medicine, money and status together.

Fun facts:

• The tool is named: a bronze lancet, not a vague “healing ritual.” This is hands-on, invasive surgery.
• The text only cares about the result of the operation, not the doctor’s intent or effort.
• Losing your hands is both punishment and a permanent ban from practice in one brutal move.

Bronze Knives, Fixed Fees and Class-Based Healthcare

Hammurabi’s code doubles as a primitive billing manual.

If a surgeon saves a noble with a risky operation, he earns ten shekels of silver.
If he saves a freed man, he gets five.
If he saves a slave, he receives two, paid by the slave’s owner.

It is a tiny table of fees carved in stone, but it reveals a lot:

• Medical work is recognised as paid professional service.
• Fees are standardised, not improvised case by case.
• Human life has an official price tag based on social rank.

In modern terms, this is an ancient version of:

• A state-imposed fee schedule for procedures.
• A crude form of reimbursement policy.
• Healthcare that is deeply intertwined with class and property.

Today, we talk about billing codes, insurance reimbursement and negotiations between hospitals and health insurance companies. Babylon had none of that, but Hammurabi still managed to write a one-page pricing and liability policy for surgery.

Strict Liability vs Negligence: How the Rules Changed

Hammurabi’s system is an early example of strict liability:

• If a specified bad outcome occurs (death, blindness), the doctor is punished, full stop.
• There is no discussion about whether the surgeon acted reasonably.
• The law doesn’t ask if anyone else contributed to the harm.

Modern medical malpractice law does almost the opposite:

• The key question is negligence: did the doctor fall below the accepted standard of care for that situation.
• Courts look at whether a reasonably competent doctor would have acted differently.
• They examine medical records, expert testimony and hospital protocols.

If negligence is proven, the outcome is usually:

• Financial damages for the patient or their family.
• A malpractice claim paid by professional indemnity insurance or medical malpractice insurance.
• Possible disciplinary action from a medical board, including suspension or loss of licence.

In other words:

• Hammurabi: “You cut. They died. Lose your hands.”
• Modern law: “You cut. They died. Let’s analyse your decisions, your notes, your training, and maybe your insurance coverage.”

Both systems try to answer the same question:
“How do we hold healers accountable when healing fails”
They just choose very different tools to do it.

Later European rulers went in a different direction, swapping mutilation for carefully priced compensation. King Æthelberht of Kent literally wrote a body-part price list. You can see how that worked in our article on the Anglo-Saxon origins of personal injury compensation.

Quick Comparison: Hammurabi vs Modern Malpractice Law

Feature	Code of Hammurabi (1750 BC)	Modern Malpractice Law
Penalty	Physical punishment (amputation of hands)	Financial damages, loss of licence, reputation
Evidence	Result-based: Did the patient die or go blind	Process-based: Did care meet the standard of care
Legal Theory	Strict liability	Negligence, duty of care, causation
Risk Cover	None	Professional indemnity / malpractice insurance
Legal Basis	Royal decree carved in stone	Tort law, statutes, case law, regulations
Social Status Impact	Noble lives trigger extreme penalties	Same rules on paper, but practical access varies
Goal	Deterrence and royal justice	Compensation, risk management, patient safety

One column is a world of kings and axes.
The other is a world of lawyers, insurers and expert witnesses.

The fear in the middle – being harmed by the person meant to help – is exactly the same.

The First “Standard of Care” (With Teeth)

Hammurabi never writes out clinical guidelines or anatomical charts. There are no checklists, no continuing education credits.

But by writing:

• “If you operate with a lancet and your noble patient dies, your hands are cut off,”

he is sending a clear message:

• Surgery is allowed.
• The king expects competent performance.
• The system will protect high-status patients with extreme penalties.

That is, in a crude way, a standard of care:

• Pick up the knife → accept full, personal responsibility.
• Fail disastrously → face the harshest sanction on the books.

Modern medicine refines this idea:

• Professional bodies and courts define the standard of care in detail.
• Clinical guidelines, peer review and expert testimony all feed into what counts as “reasonable” treatment.
• Liability insurance exists because mistakes and bad outcomes still happen, even when doctors try to follow that standard.

The move from Hammurabi to now is not about whether doctors should be accountable. It is about changing how that accountability is measured and enforced.

From Royal Stele to Tort Law and Insurance

Over the centuries, medical responsibility moved from royal stone to legal paper.

• Greek and Roman writers argued about doctors’ duties and errors.
• Medieval systems mixed religious ideas of sin with practical rules about compensation.
• Common law courts eventually developed concepts like duty of care, breach, and causation that shape tort law today.

By the 19th and 20th centuries:

• Patients could sue doctors in civil court for medical negligence.
• Doctors and hospitals responded by buying professional indemnity insurance.
• Insurers developed risk assessment and claims handling systems for malpractice.

Now, a single bad outcome can trigger:

• An internal hospital investigation
• A malpractice claim handled by a liability insurance provider
• A regulatory review of the doctor’s licence
• Years of legal argument instead of one swift blow from an executioner

The modern system is messy, expensive and often controversial. But compared to Hammurabi’s version, it has one big advantage: it recognises that medicine is uncertain, and not every bad result is a crime. If you’re interested in how other brutal laws evolved into modern financial systems, read our article on the morbid origins of life insurance and insurance law, where 18th century “death bets” helped create modern life insurance policies and liability rules.

Sources for Further Reading

1. The Code of Hammurabi – English translation (Avalon Project, Yale Law School)
   
2. The Code of Hammurabi and Medical Liability – General overview of Hammurabi’s medical laws
   
3. A History of Medical Liability: From Ancient Times to Today – Mandilara et al., open-access review
   
4. Medical Malpractice Reform: Historical Approaches, Alternative Models, and Communication and Resolution – AMA Journal of Ethics
   
5. General reference on Hammurabi’s Code and medicine – e.g. museum or encyclopedia article on ancient Mesopotamian medicine (British Museum / Louvre / academic site).