TortsProf Blog

Editor: Christopher J. Robinette
Widener Commonwealth Law School

Saturday, February 28, 2009

Baker and Lytton on Waiving Med Mal Claims

Tom Baker (Penn) and Timothy Lytton (Albany) have posted Allowing Patients to Waive the Right to Sue for Medical Malpractice:  A Response to Thaler and Sunstein on SSRN.  Here is the abstract:

This essay critically evaluates Richard Thaler and Cass Sunstein's proposal to allow patients to prospectively waive their rights to bring a malpractice claim, presented in their recent, much acclaimed book, Nudge: Improving Decisions about Health, Wealth and Happiness. We show that the behavioral insights that under gird Nudge do not support the waiver proposal. In addition, we demonstrate that Thaler and Sunstein have not provided a persuasive cost-benefit justification for the proposal. Finally, we argue that their liberty-based defense of waivers rests on misleading analogies and polemical rhetoric that ignore the liberty and other interests served by patients' tort law rights. There are many ways in which nudges could be part of reforming medical malpractice litigation and improving the quality of medical care. Thaler and Sunstein's use of behavioral economics to explore new ways of addressing persistent problems is an invitation to innovative and meaningful policy reform. Our criticisms of their medical malpractice waiver proposal are designed not to disparage this effort, but to remind policymakers of the importance of careful consideration of the facts before choosing a path for change.


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Does this involve a patient completly waiving their rights or just the forum a negligence claim is brought? I think just the forum. Arbitration is the usual tradoff and allows patients to be compensated. Actually, meritoious claims allow the money to actually go to the victim, without that extra mouth that needs to be fed 30-45% of the recovery. Attorneys can be effectively used at an hourly rate, Doctors are judged by their peers, and the volatile emotions presented to a jury are removed. ( they escalate verdicts and increase premiums.) Why isn't this a great idea. Regards Jim VP Claims Physician's Insurance Co

Posted by: Jim O'Hare AIC AIS | Mar 3, 2009 8:20:49 AM

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