Beyond Compensation: Using Torts to Promote Public Health
36 Pages Posted: 23 Oct 2006
Personal injury litigation, or tort law, traditionally, has been viewed as antithetical to the goals of public health. The focus on individual compensation for injuries resulting from accidents, products, and international wrongdoing arguably does not serve the "greater good" or communitarian objectives of public health. This Article, originally presented on a January 2006 AALS Panel on Teaching Public Health In Law School, takes issue with the traditional view and will demonstrate ways that personal injury litigation and public health objectives may be complimentary and mutually reinforcing. Some areas of tort law, such as mass torts against tobacco companies, toxic polluters, gun manufacturers, pharmaceutical companies, and producers of dangerous chemicals, such as Agent Orange and asbestos, directly serve the public interest by sending a message to those defendants that public health and safety demand safer products. In addition, policy objectives underlying torts include not only compensating injured victims though an award of monetary damages but also loss-spreading, risk-allocation, and informal regulation of safety standards and norms. Moreover, utilitarian objectives serve the public good by addressing scarce resource allocation and assigning fault to the party best able to reduce the risk and bear the loss. The Article illustrates those points through specific examples in historical and recent case law and insight into the cultural background and judicial philosophy behind the decisions. Ultimately, the goal is to challenge traditional perceptions of, and perhaps hostility toward, tort law as undermining public health objective. Shifting readers' focus carries important policy implications for tort reform, public health regulation, and health care delivery.
Keywords: Public Health, Torts, Compensation, Communal Goods
JEL Classification: A1, H4, I1, K13, K32
Suggested Citation: Suggested Citation