Reality Check: How Malpractice Facts Changed Malpractice Liability Theory

2011 Empirical Studies Of Judicial Systems, Yun-chien Chang ed., 2013

NYU Law and Economics Research Paper No. 13-12

NYU School of Law, Public Law Research Paper No. 13-23

65 Pages Posted: 27 Feb 2020

See all articles by Jennifer Arlen

Jennifer Arlen

New York University School of Law; European Corporate Governance Institute (ECGI)

Date Written: September 2013

Abstract

Empirical legal studies has transformed economic analysis of malpractice liability. Until recently, economic analysis of malpractice liability has been based on the traditional model of accidents. This model supports the conclusion that malpractice liability may not be needed if health insurers, not physicians, bear treatment costs. Moreover, this analysis implies that even when liability is welfare-enhancing, it need not be mandatory if patients are informed about the costs and benefits of liability. Empirical analysis of medical errors reveals that we cannot rely on the simple model of accidents to analyze optimal malpractice liability because patient safety depends on two different care decisions, only one of which is properly captured by the traditional model. Expanding the model to account for the two distinct ways that physicians protect patients reveals that malpractice liability is needed even when doctors want to select the right treatment. It also reveals why contractual malpractice liability is inefficient even when patients are informed about the costs and benefits of liability.

Keywords: Torts, Malpractice Liability, Contractual Liability, Medical Error; Liability Reform, Damage Caps

Suggested Citation

Arlen, Jennifer, Reality Check: How Malpractice Facts Changed Malpractice Liability Theory (September 2013). 2011 Empirical Studies Of Judicial Systems, Yun-chien Chang ed., 2013, NYU Law and Economics Research Paper No. 13-12, NYU School of Law, Public Law Research Paper No. 13-23, Available at SSRN: https://ssrn.com/abstract=2258558 or http://dx.doi.org/10.2139/ssrn.2258558

Jennifer Arlen (Contact Author)

New York University School of Law ( email )

40 Washington Square South
New York, NY 10012-1099
United States

HOME PAGE: http://https://its.law.nyu.edu/facultyprofiles/profile.cfm?personID=20658

European Corporate Governance Institute (ECGI) ( email )

c/o the Royal Academies of Belgium
Rue Ducale 1 Hertogsstraat
1000 Brussels
Belgium

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