Gijs van Dijck, ‘Should Physicians Be Afraid of Tort Claims? Reviewing the Empirical Evidence’

Do tort claims, or the fear of them, result in the adoption of practices aimed at protecting against tortious liability? Legislators, courts, and legal scholars often seem to think so, but is there empirical evidence to support this assumption? This article provides an answer to this question for the field of medical practice. An analysis of empirical studies on defensive medicine raises doubts as to whether the assumption holds true. The findings indicate that the empirical evidence is weak and that, if there is a concern about defensive practices, it seems to exist primarily in physicians’ minds. The results contribute to a better understanding of how tort law works, what effects it has on behaviour, and whether legal actors, especially at the intersection of law and medicine, should give credence to the defensive practices concern.

van Dijck, Gijs, Should Physicians Be Afraid of Tort Claims? Reviewing the Empirical Evidence (2015). Journal of European Tort Law, Issue 6, Pages 282-303, January 2016.

First posted 2016-01-18 07:22:21

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