Innovative treatments (ITs) have a distinct SIROT pattern: they often show, and are expected to show, significantly improved results over time. Of the four IT categories discussed, two stand out: SIROT treatments which are currently not in the patient’s best interest (BI) but will become superior treatment over time (category 3), and treatments which are already arguably BI but will clearly become the superior option as they improve with time (category 2).
There is a strong fairness argument to compensate patients injured from ITs because their injury led to improved knowledge benefitting future patients. By analogy to private necessity, IT patients should be considered ‘rescuers’ entitled to costs reimbursement, since future patients receive an incontrovertible benefit inextricably linked to their loss. Crucially, category 2 patients also deserve compensation, notwithstanding that their treatment was BI.
From an efficiency perspective, patients should avoid only irresponsible ITs (category 4) but they are not well-placed to identify such treatments. Patients’ incentives to submit to ITs are no worse, and perhaps slightly improve under strict liability (SL): SL might incentivise patients to undergo a treatment whose prospect as BI is in doubt but is likely to be SIROT. Finally, while under SL (but not negligence) category 2 cases yield liability, which may deter physicians from offering ITs, reputation loss under SL is lessened, so physicians’ incentives may improve (and they also have strong non-legal incentives to offer ITs).
No-Fault (Strict) Liability for Injuries From Innovative Treatments: Fairness or Also Efficiency by Tsachi Keren-Paz :: SSRNJanuary 2, 2019
Liability laws designed to compensate for harms caused by defective products may also affect innovation. We examine this issue by exploiting a major quasi-exogenous increase in liability risk faced by US suppliers of polymers used to manufacture medical implants. Difference-in-differences analyses show that this surge in suppliers’ liability risk had a large and negative impact on downstream innovation in medical implants, but it had no significant effect on upstream polymer patenting. Our findings suggest that liability risk can percolate throughout a vertical chain and may have a significant chilling effect on downstream innovation.
Existing research on the economic impacts of regulation largely focuses on federal or cross-country regulatory restrictions, but the problem of regulatory accumulation is expected to also occur at the state level. Public choice economics and market process theory offer insight into why regulations alter economic outcomes. Since regulations change the rules of the game and the payoffs that participants receive, looking beyond stated intentions to the way regulations motivate behaviors is critical. Markets are an entrepreneurially driven process characterized by changing conditions, but regulations can inhibit creative destruction and distort incentives. I use the novel State RegData dataset from the QuantGov platform, which analyzes state regulatory texts to provide measures of restriction counts and industry relevance. I estimate the effect of industry-relevant restrictions on business establishments and employment using two econometric models: a multivariate linear regression model with controls and a fixed-effects regression model. I find tentative results that a greater amount of regulation in states is associated with negative percent changes in establishments and employment. My study is a starting point for future investigations of the relationship between regulation and state-level economic outcomes.
In the United States, more than sixty-five babies die daily due to stillbirth — death of an unborn baby after twenty weeks of pregnancy but before birth. New medical research suggests that at least one fourth of those deaths are preventable with proper medical care. Stated differently, one fourth of stillbirths are due to medical malpractice. In almost all states, tort law provides recourse for mothers after the death of their children due to stillbirth. This Article uses feminist legal theory and empirical research of parents after stillbirth to demonstrate that tort law devalues stillbirth. That devaluation is due to the cognitive bias associating stillbirth with women. Historically, stillbirth only appeared in women’s claims for emotional distress. Instead of recognizing her child’s death, courts treated, and some courts continue to treat, stillbirth as just as a physical manifestation of the woman’s emotional distress. Even when modern courts recognize stillbirth as the death of a child, they still devalue that injury by characterizing the child as a nameless, genderless “fetus.” Also historically, courts were resistant to claims based on relational injuries, another injury stereotypically associated with women. Even though prenatal attachment theory demonstrates a parent-child relationship is lost in stillbirth, some courts are especially reluctant to recognize the relational injury in the context of death before birth. The cognitive bias associating stillbirth with women has also stunted the development of tort recourse for fathers, as it also will for non-biological parents. Fathers, the “forgotten bereaved,” are sometimes denied a claim or given a more limited claim. The remedy for this devaluation is a wrongful death claim for the death of a child — not just a fetus — available to both parents, including recovery for the relational injury. Tort law must also guard against possible undervaluation of the parents’ injury based on the supposed replaceability of children or the presence of other living children, and against damage caps’ mandatory undervaluation of the parents’ injury. The Article also explains how these reforms are supported by tort law theories, and explains that the wrongful death claim should be available for all stillbirths, not depending on viability. Last, the Article necessarily explains that tort law’s proper recognition of stillbirth poses no threat to the legality of abortion.
We estimate the extent of defensive medicine by physicians, embracing the no-liability counterfactual made possible by the structure of liability rules in the Military Heath System. Active-duty patients seeking treatment from military facilities cannot sue for harms resulting from negligent care, while protections are provided to dependents treated at military facilities and to all patients—active-duty or not—that receive care from civilian facilities. Drawing on this variation and exploiting exogenous shocks to care location choices stemming from base-hospital closures, we find suggestive evidence that liability immunity reduces inpatient spending by 5% with no measurable negative effect on patient outcomes.
Maternity care in the United States is in a state of crisis, characterized by high cesarean rates, poor performance on various mortality and morbidity measures, and a steep price tag. There are many factors that impede access to high-quality, evidence-based maternity care for certain women. Grassroots organizers have raised awareness about the extent to which giving birth in the United States has become overly medicalized. Perhaps less widely known, however, is the extent to which women experience abuse, coercion, and disrespect while giving birth.
Inspired by activists in Latin America, advocates in the United States have begun to adopt the language of “obstetric violence” to describe and condemn such mistreatment. However, the existing research on obstetric violence is limited, which complicates the task of defining the problem and identifying solutions. To that end, this Article explores the profound mistreatment that some women experience during childbirth at the hands of their health care providers. It identifies various types of provider behavior that qualify as obstetric violence and paints a broad picture of how childbirth can be a damaging experience for some women, even when they leave the hospital with a healthy baby. Having developed a nuanced view of provider mistreatment and its implications, this Article then examines the current failure of law and regulation to provide meaningful prevention or recourse. It concludes by suggesting forms of advocacy within the legal and health care systems that offer promising approaches to shifting maternity care culture and, ultimately, to securing necessary changes in the tort system for women harmed by provider mistreatment during childbirth.
Making Things Right When Reproductive Medicine Goes Wrong: Reply to Robert Rabin, Carol Sanger, and Gregory KeatingMay 7, 2018
Why does U.S. law turn a blind eye when OB/GYN docs foist unwanted procreation? Or when fertility clinics deny parenthood to those desperate to form a family? Or when sperm banks disrupt plans for offspring with particular genetic traits? This is a reply to three critiques of my essay on Reproductive Negligence, 117 Colum. L. Rev. 149. (2017), https://ssrn.com/abstract=2758208. Professors Robert Rabin, Carol Sanger, and Gregory Keating ask: Are these injuries too slight, squishy, or subjective? Are my proposed remedies doomed by the moral politics of abortion? Weren’t victims already infertile? Can they really “lose” a child they never had? And can’t they still abort or adopt? Besides, aren’t children blessings anyway? And don’t they come to love the one they have? These are among the questions I answer here by reference to recent cases from dropped embryos to donor mix-ups.