“… The purpose of this article is to explore more carefully the question of whether malpractice liability is failing to achieve its central function or functions and, therefore, whether radically reforming, dismantling, or replacing it with something else would be a sensible step for society. We begin, in Part II, by summarizing what is known about the problem of iatrogenic harm. Part III outlines what is known from empirical evidence about the behavior of the malpractice litigation system. With those sections as background, Part IV argues that any assessment of the tort system, and what might reform or replace it, must be guided by an understanding of the actual functions of the system – that is, by looking at what the system does to infer what its function is, rather than by theoretical arguments about what purpose or purposes it ought to be serving. We conclude that prevention of future harm is the principal function of the malpractice liability system, which leads to a review in Part V of research on the extent to which tort liability in general, and malpractice liability in particular, succeed in preventing future harm. Part VI addresses a necessary complementary question: whether the cost of the malpractice liability system is justified by the safety benefits it provides. Part VII considers changes that seem likely to occur in the future that will substantially alter that cost-benefit ratio …”
€ (Hein Online)
Saks, Michael J and Landsman, Stephan, Does Malpractice Liability Make Healthcare Safer? Aligning Law and Policy with Evidence, 12 Wake Forest Journal of Law and Policy 205 (2022).
First posted 2022-06-29 10:00:37
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