Offsetting Risks in Tort Law: Theoretical and Practical Difficulties
54 Pages Posted: 30 Nov 2009
Date Written: November 27, 2009
The Article examines the Offsetting Risks Principle (“ORP”) recently presented by Prof. Ariel Porat, and offers a critique thereof. In Porat’s opinion, this innovative principle should be applied to medical malpractice cases, in particular, as part of the fight against the phenomenon of defensive medicine, and could also be applied to tort law, in general. Based on ORP, Porat proposes a change, through legislation, in the prevailing legal outcome whereby liability is imposed on injurers who, having a choice of two courses of action, each of which has some risk, have negligently chosen the course of action that carried a greater potential for harm compared to the other course of action, and that risk was materialized.
According to the proposed ORP, courts would take into account the risks decreased by the wrongdoing as a mitigating liability factor, i.e., the risk (in percentages) that actually materialized due to the negligent choice would be reduced by the risk (in percentages) expected to materialize had the nonnegligent course of action been chosen. Porat proposes that the injured party be compensated for the difference through either social or private insurance.
Serious questions arise both from an analysis of the practical implementation of ORP and from a theoretical perspective of the goals of tort law. These questions put into doubt the compatibility of ORP with the system of tort law, and make its actual implementation difficult, if not impossible.
Accordingly, the Article recommends that, despite problems in medical malpractice cases and tort law in general, ORP, as was presented, should not be applied. This is because, despite the specific problem of defensive medicine and overinvestment in precaution that it attempts to remedy, and as difficult a problem as this may be, ORP is very likely to complicate the present situation in many respects, make litigation more costly, and make it tangibly harder to evaluate the evidence in medical malpractice cases, in particular, and in tort law, in general. Had the inherent problems, both technical and substantive, in the basis of ORP, been solved, or its difficulties mitigated, at least, its implementation might be appropriate, although in the present situation it is hard to believe that these difficulties could be resolved and that the ORP could be consistent with the goals of tort law.
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