July 16, 2009
Alternative Med Mal Proposals
First up is hospital vicarious liability, promoted by Professor Philip Peters (Missouri) in a recent SSRN posting Making Hospitals Accountable. Here is the abstract:
Modern health care is delivered by large teams of highly trained individuals in a complex web of interaction that demands coordination and oversight. For this reason, the traditional model of malpractice liability, in which the individual caregiver is liable, is outmoded: medical errors often are the result of system failures, and systemic changes best address these problems. For this reason, a robust regime of hospital vicarious liability has more potential than any other malpractice reform to realign the deterrent power of tort law with the goal of patient safety.
Next we have health courts, promoted by lawyer-author Philip Howard (Common Good) in a WSJ op-ed. Here's a taste:
Studies have repeatedly demonstrated that the current ad hoc system of justice, with verdicts that vary widely from one jury to the next, has spawned a culture of legal fear and self protection. Studies also show that the system fails injured patients -- a claim takes an average of five years to resolve and nearly 60 cents out of every dollar spent in the malpractice system ends up going to lawyers or administrative costs.
That's why most of the important health-care constituencies, from the American Medical Association to AARP, favor creating pilot projects for special health courts. Mr. Obama has recently talked about the need "to explore a range of ideas about how to . . . scale back the excessive defensive medicine."
(Via Olson/Point of Law)
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