A new report for the Pioneer Institute by John Biebelhausen (Colorado) and Amy Lischko (Tufts) examines a range of policy options for improving the Massachusetts medical malpractice system, including “less traditional” options such as “contract liability,” a “method for patients to contract directly with doctors or health systems to establish pre-determined rules for compensation in the case of injury due to physician negligence.” [“Innovative Medical Liability Reform: Traditional and Non-Traditional Methods“]
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Do we want an accountable, grown-up society?
If so, those who negligently injure others should be responsible and not be shielded from liability.
Our new visitor Michael B. has left comments on this and another post taking the view that limits on liability are inconsistent with an “accountable, grown-up” society. I would think, though, that contractually arrived-at limits on liability are very much a feature of a grown-up society, and that “be accountable for the contracts you sign” is more characteristic of a grown-up society than a paternalistic (and infantilizing) insistence on allocating liability in a manner disclaimed by the parties themselves.
An open ended life insurance contract can not work, and life insurance contracts have a face amount. The “responsibility” mentioned by Michael Burke above is in essence open ended adverse outcome insurance, which mechanism will naturally drive malpractice premiums to harmful levels. I have argued many times for setting limits before an insured event.
While I favor medical liability limitations, shifting to a contractual system seems a bad idea. The contract will be in with the HIPAA paperwork, etc. and in some cases signed by a potential patient under some pressure. Sorta like clicking on the TOS at a web site. I’d guess the net result would be to add another layer of litigation to invalidate the adhesion contract for duress, etc., so we can procede with the usual negligence case.
[…] If states don’t establish malpractice caps, doctors can contract with patients directly “to establish pre-determined rules for compensation in the case of injury due to physician negligence.” Just like attorneys in Florida who contract around the statutory limits on attorney contingency […]