Review of Litigation, Vol. 27, No. 2, p. 307, 2008
26 Pages Posted: 15 May 2010 Last revised: 5 Aug 2010
Date Written: 2008
The injuries that give rise to tort cases usually implicate not just tort law but other strands of our society's compensatory fabric--Medicare and Medicaid, Social Security disability, workers' compensation, private medical insurance, and private disability insurance. This Article analyzes some of the intersections that especially warrant the attention of policymakers and analysts. One topic is how tort law interacts and coordinates with other payment strands in the compensation fabric. The two major legal standards bearing on coordination are the collateral source doctrine and the doctrine of subrogation. Both of these have changed substantially in recent years, leaving a coordination picture that is both more unstable and more complex than it was twenty years ago. In some states, the doctrines are incoherent or indefensible. The Article also discusses two emerging and unsettled issues relating to the calculation of pecuniary damages: how managed care reimbursement should be taken into account in a tort suit, and the proper role of annuity evidence in assessing future pecuniary loss.
Keywords: tort law, Medicaid, Medicare, social security disability, managed care
JEL Classification: I00, K13, K41
Suggested Citation: Suggested Citation
Pryor, Ellen S., Part of the Whole: Tort Law's Compensatory Failures Through a Wider Lens (2008). Review of Litigation, Vol. 27, No. 2, p. 307, 2008. Available at SSRN: https://ssrn.com/abstract=1605345