Abstract

http://ssrn.com/abstract=1444958
 
 

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Deconstructing Negligence: The Role of Individual and System Factors in Causing Medical Injuries


Michelle M. Mello


Harvard University - Department of Health Policy & Management; Harvard University - Edmond J. Safra Center for Ethics

David M. Studdert


University of Melbourne - Faculty of Law & Faculty of Medicine, Dentistry and Health Sciences

January 1, 2008

Georgetown Law Journal, Vol. 96, No. 1, 2008

Abstract:     
Like most branches of tort law, medical malpractice is largely premised on the notions that injuries arise from individual carelessness or lack of expertise, that culpable actors can be readily identified, and that their negligence can be deterred by setting damages sufficiently high to induce medical professionals to take due care. The emerging science of patient safety takes a very different view of the occurrence and prevention of medical injury in favor of a “systems” view of accident causation. In this Article, we examine new evidence about the nature of the relationship between individual and systems factors in the production of medical injury relationship and consider its salience for tort doctrine’s conventional view of injury causation. The data come from an empirical study of 1,452 closed malpractice claims. Three key findings have implications for tort doctrine. First, the causality of medical injuries is multifactorial and weblike. This challenges the traditional tort-law notion of the causal chain. Second, in analyzing the complex causality typically associated with medical injury, it is difficult to cleanly separate individuals and their failures from the larger environments or systems in which they work. This raises questions about medical malpractice doctrine’s heavy focus on individual liability. Finally, the pattern of etiologic factors identified suggests that the most promising opportunities for injury prevention lie at the organizational level. Yet tort incentives currently run to individuals, not organizations. We conclude with some suggestions for realigning tort doctrine to better reflect the realities of medical-injury causation.

Keywords: medical, malpractice, liability

JEL Classification: I10, K13

working papers series


Not Available For Download

Date posted: August 8, 2009  

Suggested Citation

Mello, Michelle M. and Studdert, David M., Deconstructing Negligence: The Role of Individual and System Factors in Causing Medical Injuries (January 1, 2008). Georgetown Law Journal, Vol. 96, No. 1, 2008. Available at SSRN: http://ssrn.com/abstract=1444958

Contact Information

Michelle M. Mello (Contact Author)
Harvard University - Department of Health Policy & Management ( email )
677 Huntington Avenue
Boston, MA 02115
United States
617-432-0217 (Phone)
617-432-4494 (Fax)
Harvard University - Edmond J. Safra Center for Ethics ( email )
124 Mount Auburn Street
Suite 520N
Cambridge, MA 02138
United States

David M. Studdert
University of Melbourne - Faculty of Law & Faculty of Medicine, Dentistry and Health Sciences ( email )
Melbourne, Victoria 3010
Australia
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