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Speak Not of Error

6 Pages Posted: 27 Sep 2005 Last revised: 8 Oct 2007

David A. Hyman

Georgetown University

Charles Silver

University of Texas at Austin - School of Law


Until recently, physicians argued that malpractice liability should be restricted because medical errors were few and far between. As the empirical literature made that position indefensible, physicians have conceded that medical errors are common, but they continue to call for tort reform, arguing that the alarmingly high frequency of medical errors is the legal system's fault. Malpractice liability is seemingly destined (at least among providers) to be always part of the problem, and never part of the solution. But why would a policy of penalizing unwanted conduct and mistakes not have an important role to play in a comprehensive strategy to make health care safer? The view that sanctions discourage targeted behaviors is at least as plausible as the assertion that punishments make errors more common; in our view, it is more plausible.

Keywords: malpractice, malpractice liability, physicians, medical errors, health care, sanctions

JEL Classification: I1, K13, K32

Suggested Citation

Hyman, David A. and Silver, Charles, Speak Not of Error. Regulation, Vol. 28, No. 1, pp. 52-57, Spring 2005. Available at SSRN:

David A. Hyman (Contact Author)

Georgetown University ( email )

Washington, DC 20057
United States

Charles M. Silver

University of Texas at Austin - School of Law ( email )

727 East Dean Keeton Street
Austin, TX 78705
United States
512-232-1337 (Phone)
512-232-1372 (Fax)

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