What are We Reforming?: Tort Theory's Place in Debates Over Malpractice Reform
11 Pages Posted: 17 Jan 2007
This Essay explains why lawyers, policy-makers and scholars interested in medical malpractice reform and tort reform more generally must attend to tort theory. Theory does not provide answers to policy questions. Rather, it frames and guides analysis. The Essay uses two examples to make its point.
The first concerns the phenomenon of "underlitigation," which is typically treated by commentators as a symptom of tort law's deficiencies as a scheme for deterring undesirable behavior and/or compensating injury victims. This evaluation presupposes, of course, that tort law is properly theorized as a scheme for deterring and/or compensating. An alternative and more satisfactory conception of tort treats it as a law that empowers victims of wrongs to respond to those wrongs by seeking redress from their wrongdoers. Given this alternative conception, we will want to know much more about why malpractice victims tend not to sue. For if they are knowingly and voluntary choosing not to pursue claims that the law has made available to them, then, on a wrongs-and-redress theory, there is nothing at all wrong with the tort system.
The second example concerns the constitutionality of reform measures that cut back on malpractice liability in the name of making medical services more readily available or cheaper. If tort law is conceived as public regulation of bad medical practices - i.e., enforcement actions brought by plaintiffs playing the role of private attorneys general - then courts probably should assess the constitutionality of malpractice reform measures under toothless rational basis analysis. If, by contrast, tort is understood as a law for the redress of wrongs, courts will be entitled to deploy a more robust form of judicial review.
Keywords: deterrence, malpractice, redress, tort reform, tort theory, under-litigation, wrongs
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