Maintaining the Punitive Element of Tort through Social Sanctions in Malpractice Reform

Abstract

In this piece, I focus on the limitations of moving medical malpractice from a tort to contracts basis, particularly in the loss of the punishment aspect of punitive damages. In doing so, I present the way in which medical malpractice is currently implemented in the United States under tort law. I then briefly review current malpractice reform efforts, focusing more so on the idea of “no-fault” administrative systems. Here, I also explore the fundamental legal differences between contracts and tort. I then discuss the ethics of blame-shielding and whether or not we are losing something by failing to blame bad actors. In doing so, I focus on the ethical implications of punishment. Operating under the assumption that the current tort-based medical malpractice system is driving up health care costs, I conclude by proposing a hybrid system that combines contract theory with noneconomic punitive sanctions: a “no-fault fault system.”