Allowing Patients to Waive the Right to Sue for Medical Malpractice: A Response to Thaler and Sunstein

20 Pages Posted: 26 Feb 2009 Last revised: 2 Oct 2010

Tom Baker

University of Pennsylvania Law School

Timothy D. Lytton

Georgia State University College of Law

Date Written: September 30, 2010

Abstract

This essay critically evaluates Richard Thaler and Cass Sunstein's proposal to allow patients to prospectively waive their rights to bring a malpractice claim, presented in their recent, much acclaimed book, Nudge: Improving Decisions about Health, Wealth and Happiness. We show that the behavioral insights that under gird Nudge do not support the waiver proposal. In addition, we demonstrate that Thaler and Sunstein have not provided a persuasive cost-benefit justification for the proposal. Finally, we argue that their liberty-based defense of waivers rests on misleading analogies and polemical rhetoric that ignore the liberty and other interests served by patients' tort law rights. There are many ways in which nudges could be part of reforming medical malpractice litigation and improving the quality of medical care. Thaler and Sunstein's use of behavioral economics to explore new ways of addressing persistent problems is an invitation to innovative and meaningful policy reform. Our criticisms of their medical malpractice waiver proposal are designed not to disparage this effort, but to remind policymakers of the importance of careful consideration of the facts before choosing a path for change.

Keywords: Nudge, liberty, health care, waiver, cost-benefit analysis, behavioral economics, professional negligence, torts, liability insurance, healthcare costs, bias perception, tort compensation

JEL Classification: K13

Suggested Citation

Baker, Tom and Lytton, Timothy D., Allowing Patients to Waive the Right to Sue for Medical Malpractice: A Response to Thaler and Sunstein (September 30, 2010). Northwestern University Law Review, Vol. 104, Pg. 233, 2010; U of Penn, Inst for Law & Econ Research Paper No. 09-06; Albany Law School Research Paper No. 09-07. Available at SSRN: https://ssrn.com/abstract=1349836

Tom Baker (Contact Author)

University of Pennsylvania Law School ( email )

3501 Sansom Street
Philadelphia, PA 19104
United States
215-746-2185 (Phone)

HOME PAGE: http://www.law.upenn.edu/cf/faculty/thbaker/

Timothy D. Lytton

Georgia State University College of Law ( email )

P.O. Box 4037
Atlanta, GA 30302-4037
United States

HOME PAGE: http://law.gsu.edu/profile/timothy-d-lytton/

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