Document Type

Article

Publication Title

DePaul Law Review

Abstract

I start from the simple premise that on balance the gains from the provision of medical services are strongly positive, so that it should be possible to fashion a legal regime from which both patients and physicians gain. But the magnitude of the current impasse, as well as the contraction and withdrawal of vital services in the face of those positive benefits, is a sign of deep disorder within the health care system, a point which neither side in the debate has grasped. Before I analyze the four articles that address important aspects of this recurrent problem, it is useful to explain why current disputes will continue without abatement until there is a fundamental rethinking about how to design medical malpractice liability regimes. More specifically, in the current debate both sides think that either the legislature, the courts, or both should design the rules of liability for these cases. Thus, after the question of who should decide in favor of some public law situation, the next question of how the decision should be designed becomes roiled in hopeless political conflict. Contrary to the received wisdom, there is no way to get the right result so long as we keep asking the how question without looking first at the who question. In my view, the answer to that initial choice of who is that the parties and not the state should decide the terms of liability.

First Page

503

Volume

54

Publication Date

2005

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