TortsProf Blog

Editor: Christopher J. Robinette
Widener Commonwealth Law School

Tuesday, December 4, 2012

"Reforming the Tort System: Freeing the Patient"

Psychology Today has an article by John C. Goodman, Ph.D., on "Reforming the Tort System: Freeing the Patient."    The article examines medical malpractice liability by contract, rather than the tort system. Goodman is a Research Fellow at the Independent Institute and President and Kellye Wright Fellow in Healthcare at the National Center for Policy Analysis.


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I am not sure just what the system advocated by Professor Goodman would accomplish. First of all, contracts relieving doctors and hospitals of liability as a condition for treatment haven't been part of the tort system for about, oh say, 100 years. Those were ruled as an unacceptable adhesion contract and against public policy by state courts years ago.

Kaiser in California has been able to get mandatory arbitration for non-emergency or elective treatment. However, even these contracts are not fool-proof and can end up in tort.

If a system similar to worker's comp is utilized, and it is based on no-fault bad outcome situations, the costs are likely to skyrocket. First of all, we know that state worker's comp administrative law systems are pristine and completely void of any politics or double dealing (wink, wink, chuckle, chuckle, nod nod).

And so now, based on contract, anyone with a bad outcome will have a new entitlement for compensation. It is estimated that about 7% of bad outcomes get filed as med mal cases today. So assume 50% of the bad outcomes get filed in the new administrative system. How is that going to save costs? What if it is 90% of the bad outcomes?

Who's going to buy the contract? Medicaid patients and the working poor can't even buy a medical insurance contract. And social justice would demand that all people be treated the same, no matter how wealthy or poor they might be. So state funds could be funneled into insurance companies to provide coverage for those who can't afford it. That sounds like a real humdinger of a deal. Or the state could just mitigate the losses of the insurance companies above a certain amount like they do with worker's comp in some states.

So how do we prove the patient had a disabling bad outcome? We would do that with expert testimony. Oops. Sounds like we right back in the same old tort system.

Posted by: Tony Francis | Dec 4, 2012 7:14:55 PM

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