The Underrecognized Role of Tort Law in the U.S. Healthcare System

Abstract

In considering the regulatory role of tort law in the U.S.healthcare system, the focus tends to be on medical malpractice liability. Though an important part of the role of tort law, it is by no means the only one: litigants have used tort claims to seek redress for health harms caused by pharmaceutical drugs and medical devices, as well as by products such as cigarettes. In light of the reality of the devastating health harms that have been caused by these products and the current inability of federal agencies to provide adequate protections, the larger role of tort law in the healthcare system must be taken into account. This is particularly so given the campaign to bring a halt to such litigation - product claims as well as malpractice claims - with calls for “reform” of the tort system, and, relatedly, the argument that the limited federal law governing these products preempts state tort law claims. In this essay, I explicate the great import of products-liability litigation for the U.S. healthcare system, thereby highlighting the significant role that tort law plays in that system, a role that is obscured by a narrow focus on medical malpractice liability.

Keywords: products liability, medical malpractice, consumer protection, public health