Alexander Volokh, ‘Medical Malpractice as Workers’ Comp: Overcoming State Constitutional Barriers to Tort Reform’

Abstract
This Article discusses the intersection of torts, administrative law, and constitutional law – a surprisingly understudied area, given its importance for modern-day tort reform efforts.

In several states, based on perceptions of a medical malpractice liability and insurance crisis, reformers have sought to abolish tort liability for medical malpractice – replacing it with an administrative compensation system not based on negligence and roughly similar to workers’ compensation.

Tort reformers have, in the past, been hindered by state courts that have struck down damages caps and similar reforms on state constitutional theories. Some of the main theories have been state constitutional jury trial rights, access-to-courts rights, and due process/equal protection.

Surprisingly, it turns out that workers’-comp-like administrative systems, though more radical than damages caps and similar reforms, seem to have a better chance of being held constitutional – in part because of their similarities with workers’ comp, which also abolished certain tort actions and replaced them with a non-negligence-based administrative system, and which has been universally held to be constitutional.

This Article analyzes the constitutionality of this sort of administrative compensation system under the Florida, Alabama, and Georgia constitutions, focusing on jury trial rights, access-to-courts rights, and due process/equal protection.

Alexander Volokh, Medical Malpractice as Workers’ Comp: Overcoming State Constitutional Barriers to Tort Reform, 67 Emory Law Journal 975 (2018).

First posted 2018-06-05 13:26:19

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