Public Policy Implications of Liability Regimes for Injuries Caused by Persons with Alzheimer's Disease

Abstract

People in the United States and the developed world are living longer than ever before. While gains in the average life expectancy have been modest, these greatly underestimate the growth of the elderly population. Most of this elderly population is healthier than comparable populations in the past and they actively participate in everyday life much more than people of comparable age in decades past. The amelioration of many of the diseases of age has accentuated the problems of the chronic diseases for which there are no effective treatments. Perhaps the most devastating of these is Alzheimer's disease, a progressive dementia leading to incapacity and death.

This article discusses the public policy implications of tort liability rules for persons with Alzheimer's disease (PWD) who injure their caregivers or member of the general public, and the potential liability of their caregivers for not preventing injuries to the general public. The analysis is rooted in preventive law and therapeutic jurisprudence concerns, rather than advocacy for either PWDs or their victims. The objective is to identify the proper balance between tort liability, immunity, and non-tort approaches such as public health reporting and management strategies. This recognizes that expanding liability will increase the pressure on insurers and families to limit freedom of PWDs, while limits on liability may leave deserving persons uncompensated and create a public backlash that will drive unnecessarily broad or harsh restrictions of PWDs. Most troublingly, the tort doctrine that once a duty is assumed, it must be carried out non-negligently, can create perverse incentives: family caregivers may have no legal duty to prevent PWDs under their care to stop driving, but become liability for tying to stop them and not succeeding.

This article reviews the history of the applicable doctrines and the current trends, but recognizes that jurisdictions vary widely and that it is uncertain which approach, if any in current use, is the best. The author proposes modifying the tort law regime with public health and preventive law strategies. Most importantly, the author wants to encourage further study of these problems and the collection and analysis of empirical information on the impact of tort law on the lives of PWDs, their caregivers, and the people they interact with in society.

JEL Classification: K13, K32, K42