The Imperfect Art of Medical Malpractice Reform
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Description
The greatest transformation of the health care delivery system in the United States was put in place in March 2010 when President Barack Obama and a Democratic congress prevailed over a fierce but unavailing Republican opposition. The Patient Protection and Affordable Care Act—aka ObamaCare—alters, in unimagined ways, the tax and regulatory environment for the delivery of health care services in the public and private spheres. Yet in the midst of all that tumult, Congress pointedly chose to bypass one area of passionate interest to doctors, hospitals, and other health care providers: the much mooted issue of medical malpractice reform. ObamaCare’s unmemorable contribution to this arena was its ‘‘sense of the Senate’’ (but not of the House of Representatives) in support of some modest experimental projects at the state level, which at some far distant time might disclose some undefined improvements within the system. The realist explanation for the want of any meaningful medical malpractice reform starts and ends with the proposition that the Democratic Party is joined at the hip to one of its key constituent groups: the trial lawyers. The more charitable explanation is that medical malpractice reform does not exert sufficient influence on the overall operation of the health care system to merit that inclusion in major social legislation. There is obvious truth in the former proposition, but much controversy over the latter. The substantive question is: Just what could any Congress hope to achieve by intelligent medical malpractice reform? Answering that question is not easy. It is first necessary to grasp the situation on the ground with medical malpractice. Just how many resources does it consume, and what social dislocations, if any, does it create? Once that is done, it is possible to think about a range of reforms and their probable consequences. Part I of this paper thus gives a brief overview of costs, direct and indirect, of running the current liability system. Part II then turns to a theoretical discussion of the proper basis of medical malpractice liability in order to explain why private contracts, not public tort rules, should govern. Part III then examines the set of possible reforms that could respond to the theoretical difficulties in the current approach. A brief conclusion follows.
Source Publication
Reforming America’s Health Care System: The Flawed Vision of ObamaCare
Source Editors/Authors
Scott W. Atlas
Publication Date
2010
Recommended Citation
Epstein, Richard A., "The Imperfect Art of Medical Malpractice Reform" (2010). Faculty Chapters. 384.
https://gretchen.law.nyu.edu/fac-chapt/384
