Washington University Law Quarterly
In this Article a clear-cut dichotomy is maintained between the liability of the phyisician or surgeon for breach of express contract, on the one hand, and malpractice, on the other hand. It is recognized that some persons use malpractice in a generic sense to connote any action against a physician or surgeon regardless of its nature or form. With them one cannot quarrel for theirs is simply a choice of terminology, "de gustibus non disputandum," and is not based on any particular view of the substantive law underlying the claim. However, the better and almost universal usage is to restrict "malpractice" solely to cases involving negligent or unskillful conduct on the part of the physician and surgeon, and it is so used here.
Arnold J. Miller,
Contractual Liability of Physicians and Surgeons,
1953 Wash. U. L. Q. 413
Available at: http://openscholarship.wustl.edu/law_lawreview/vol1953/iss4/3