Saturday, August 4, 2018

Excellent Article on the Idea of Applying Workers' Comp Type Structures to Med Malpractice

I suspect there is much concerning which Prof. Alexander Volokh and I would disagree, but I cannot heap enough praise on his excellent article, "Medical Malpractice as Workers’ Comp: Overcoming State Constitutional Barriers to Tort Reform," published in the Emory Law Journal earlier this year. I would argue that he has framed the issues surrounding state law constitutionality of tort substitutes (like workers' compensation)  just right. I came across the piece as I was working on my article on workers' compensation benefit adequacy and the prehistory of the 1917 White case, about which more later.  Here is a link to Prof. Volokh's article.  The abstract is below:

This Article discusses the intersection of torts, administrative law, and constitutional law—a surprisingly understudied area, given its importance for modern-day tort reform efforts. In several states, based on perceptions of a medical malpractice liability and insurance crisis, reformers have sought to abolish tort liability for medical malpractice—replacing it with an administrative compensation system not based on negligence and roughly similar to workers’ compensation.

Tort reformers have, in the past, been hindered by state courts that have struck down damages caps and similar reforms on state constitutional theories. Some of the main theories have been state constitutional jury trial rights, access-to-courts rights, and due process/equal protection.

Surprisingly, it turns out that workers’-comp-like administrative systems, though more radical than damages caps and similar reforms, seem to have a better chance of being held constitutional—in part because of their similarities with workers’ comp, which also abolished certain tort actions and replaced them with a non-negligence-based administrative system, and which has been universally held to be constitutional.

This Article analyzes the constitutionality of this sort of administrative compensation system under the Florida, Alabama, and Georgia constitutions, focusing on jury trial rights, access-to-courts rights, and due process/equal protection.


Excellent stuff!


Michael C. Duff

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