Toward a Theory of Medical Malpractice

Author:Alex Stein
Position:Professor of Law, Benjamin N. Cardozo School of Law, Yeshiva University
Pages:1201-1257
 
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1201
Toward a Theory of Medical Malpractice
Alex Stein
INTRODUCTION .................................................................................... 1202
I. THE MECHANICS OF MEDICAL MALPRACTICE RULES ........................... 1208
A. ENTRY RULES ................................................................................. 1208
1. Liability Benchmarks ........................................................... 1209
2. The Execution Mechanism .................................................. 1213
B. EXIT RULES .................................................................................... 1216
1. Burden of Proof ................................................................... 1217
2. Proof by Differential Etiology .............................................. 1221
3. Narrowing Malpractitioners’ Defenses ............................... 1223
4. The Lost-Chance Doctrine .................................................. 1225
C. TREATMENT AND SETUP RULES ....................................................... 1226
1. Medical Resource Management .......................................... 1227
2. Institutional Liability ............................................................ 1229
3. Informing Patients ............................................................... 1232
II. INSTITUTIONAL INFRASTRUCTURE ....................................................... 1235
A. CHOICE OF RULES: FORM, COST, AND INSTITUTIONAL COMPETENCE . 1236
B. DUAL RULEMAKING ........................................................................ 1243
C. COURTS AS EXIT KEEPERS ............................................................... 1246
III. VIRTUES AND VICES OF OUR MEDICAL MALPRACTICE SYSTEM ............. 1247
A. IS OUR SYSTEM EFFICIENT? ............................................................. 1248
B. PROCEDURAL TORT REFORM .......................................................... 1251
C. SUBSTANTIVE TORT REFORM .......................................................... 1253
CONCLUSION ....................................................................................... 1257
Professor of Law, Benjamin N. Cardozo School of Law, Yeshiva University. I thank Ron
Allen, Ronen Avraham, Tom Baker, Rick Bierschbach, Eric Chason, Glenn Cohen, James
Dwyer, Michael D. Green, Michael Steven Green, Tara Grove, Maggie Lem os, Alan Meese,
Nathan Oman, Gideon Parchomovsky, Ariel Porat, Bob Rabin, David Rudenstine, Jason
Solomon, Mark Weiner, and participants in workshops and presentations at Albert Einstein
College of Medicine, Yeshiva University, and William & Mary Law School for their excellent
comments on earlier drafts. I also thank Mario Lucero (J.D. candidate, Benjamin N. Cardozo
School of Law, Yeshiva University, 2013) for outstanding research assistance.
1202 IOWA LAW REVIEW [Vol. 97:1201
INTRODUCTION
This Article develops a novel theory that explains the operation of our
medical malpractice system and guides its reform. Focusing on the system’s
institutional infrastructure, the theory uncovers the mechanisms employed
by medical malpractice law to impose, restrict, and expand care providers’
liability. These mechanisms consist of “entry rules” and “exit rules” that are
either treatment related or setup related. Entry rules determine a care
provider’s entry into liability by instructing courts how to identify
malpractice in the treatment of a patient or, alternatively, in the care
provider’s setup of equipment, facilities, information, and personnel. Exit
rules, by contrast, determine the circumstances under which a
malpractitioner can be granted a release—or exit—from liability.1 Critically,
each type of rule is determined by a different institution or actor, or a
combination thereof. The medical profession has the exclusive power to
devise treatment-related entry rules. Courts,2 the legislature, and the medical
profession collectively formulate entry rules pertaining to setups. Courts
function as exit keepers: they are given the exclusive power to determine the
circumstances under which malpractitioners will be released from liability.
These mechanisms respond to two important concerns about legal
rules: institutional competence and form. As far as institutional competence
is concerned, the medical profession is best positioned to devise rules for
patients’ treatment, while courts are best situated to determine
malpractitioners’ liability for damages. The adequacy of medical setups
depends on the cost-benefit analysis of medical needs and resources. The
medical profession is best positioned to identify those needs and resources,
while courts and the legislature are best situated to determine the costs that
care providers ought to expend on satisfying patients’ needs. Entry rules
pertaining to setups consequently combine the inputs of both legal and
medical institutions.
As for the rules’ form, treatment-related entry rules are formulated into
a set of detailed requirements that care providers can easily identify and
comply with. Exit rules are narrowly tailored as well, but for a different
purpose: courts made those rules narrow to undercut malpractitioners’
opportunity to avoid liability by causally disassociating their misdeeds from
patients’ damages. Entry rules pertaining to setups have a different form:
originating from a cost-benefit analysis that integrates legal and medical
inputs, these rules can only be—and, in fact, are—formulated as broad
standards.
1. Grant Gilmore famously applied the “entry/exit” categorization in his classic analysis
of contract rules. GRANT GILMORE, THE DEATH OF CONTRACT 47–48 (1974).
2. Unless otherwise indicated, my references to “court” and “courts” are meant to
include both judges and jurors.
2012] TOWARD A THEORY OF MEDICAL MALPRACTICE 1203
These mechanisms produce three substantive effects. First, they confine
care providers’ liability for treatment-related malpractice to cases exhibiting
failure to comply with a specified medical rule. In parallel, they impose
setup-related liability upon care providers whose use of medical resources
fails the cost-benefit test. Last but not least, these mechanisms curtail
malpractitioners’ ability to avoid the obligation to compensate the aggrieved
patient.
Table 1 below outlines these mechanisms:
Rules’ t
yp
e
Rules
devised by
ENTRIES
into liability for faulty
EXITS
from liability for faulty
TREATMENT SETUP TREATMENT SETUP
MEDICAL
PROFESSION
narrow
-
-
-
COURTS /
LEGISLATURE
-
-
narrow narrow
BOTH
-
broad
-
-
TABLE 1
The theory I develop in this Article significantly improves the
conventional understanding of our medical malpractice system. “Medical
malpractice” is generally understood as a care provider’s deviation from the
patient-treatment standards that have been devised by the provider’s peers.3
According to this understanding, courts should rely on medical experts to
determine whether a provider’s treatment of his patient conformed to those
professional standards. If the treatment conformed to those standards, the
court should dismiss the malpractice allegations. If the treatment violated
the standards, the court should hold the provider negligent and determine
whether his malpractice injured the patient or worsened her condition.4
This simplistic understanding fails to identify our system’s modus
operandi. Specifically, it overlooks the dual rulemaking mechanisms that
integrate courts, legislators, and the medical profession in the design and
implementation of the system’s rules. Failure to account for these
mechanisms has created distortions in the conventional understanding of
the system. As I demonstrate below, those distortions have prompted a
number of law reforms that reduced malpractitioners’ liability for no good
reason.5
As a threshold matter, courts do not rely on broad standards in
determining the adequacy of a patient’s treatment. Instead, they rely on
3. See infra notes 27–31 and accompanying text.
4. See infra Subpart I.A.1.
5. See infra Subpart III.C.

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