Abstract
Innovative treatments (ITs) have a distinct SIROT pattern: they often show, and are expected to show, significantly improved results over time. Of the four IT categories discussed, two stand out: SIROT treatments which are currently not in the patient’s best interest (BI) but will become superior treatment over time (category 3), and treatments which are already arguably BI but will clearly become the superior option as they improve with time (category 2). There is a strong fairness argument to compensate patients injured from ITs because their injury led to improved knowledge benefitting future patients. By analogy to private necessity, IT patients should be considered ‘rescuers’ entitled to costs reimbursement, since future patients receive an incontrovertible benefit inextricably linked to their loss. Crucially, category 2 patients also deserve compensation, notwithstanding that their treatment was BI …
Keren-Paz, Tsachi, No-Fault (Strict) Liability for Injuries From Innovative Treatments: Fairness or Also Efficiency (2018). Law, Innovation and Technology, Forthcoming.
First posted 2018-12-17 06:55:23
Leave a Reply