Healthism in Tort Law

Abstract

This article draws on the author's recently published book, Healthism: Health Status Discrimination and the Law (with Jessica L. Roberts) (Cambridge University Press 2018), examining tort law doctrine and policy for examples of differential treatment of health status or behaviors. Just as scholars previously have drawn attention to discrimination based on race, sex, age, and other protected categories in tort law, the article urges similar examination of tort law's potential to discriminate against the unhealthy. The article discusses the potential for healthism in the reasonably prudent person standard of care, contributory negligence, assumption of the risk, noneconomic damages caps, impaired driver and physician cases, failure to mitigate, intentional infliction of emotional distress, and other tort law rules. It concludes by applying the book's decisional rubric for distinguishing between permissible and impermissible health status differentiation to specific examples from tort law.

Keywords: health law, healthism, torts, insurance, illness, medical condition, health status, discrimination, healthist, private conduct, statutory caps, medical malpractice, reasonably prudent person, negligence, reasonable care, ageism, obesity, unhealthy, contagious diseases, substance abuse

JEL Classification: K13, K32, I10, I13, I14, I18