Omer Pelled, ‘Aggregating Liability for Medical Malpractice’, 22 Yale Journal of Health Policy, Law, and Ethics 134 (2024). The American system of medical malpractice has long been criticized for failing to achieve either of the two primary goals of tort law: compensating victims or deterring misconduct. For victims of medical error, ‘[t]he malpractice liability system provides little compensation overall, and what infrequent compensation it provides it does so inefficiently with high transaction costs’. As for deterrence, researchers have found ‘no association between greater risk of malpractice liability and health care quality’.
There has been no shortage of proposals to replace the system with potentially more effective alternatives, ranging from the use of specialized health courts to broader systems of enterprise liability to a wholesale replacement of the system with a no-fault compensation regime. In a provocative new article, ‘Aggregating Liability for Medical Malpractice’, Omer Pelled of Bar Ilan University School of Law enriches the debate by introducing a novel new approach he calls ‘strict liability for unreasonable harm’ (SLUH), a creative mashup of negligence and strict liability that shifts the focus from discrete medical injuries to the pattern of outcomes resulting from a provider’s acts and omissions over a specified period of time … (more)
[Carl Coleman, JOTWELL, 9 May 2025]
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