What Are We Reforming? Tort Theory\u27s Place in Debates Over Malpractice Reform

Those who are reforming medical malpractice law, or studying its reform, ought to attend to tort theory. This is not because theory will settle difficult policy debates. But it does enable reformers and scholars to be more aware of how under-appreciated and possibly dubious assumptions or inferences might be skewing their analyses. In this Essay, I aim to make this point with two examples. My first example concerns under-litigation-the apparent fact that a substantial percentage of persons with injuries plausibly traceable to malpractice never sue their doctors.\u27 Assume this is a real phenomenon. What are we to make of it? In the eyes of some, it provides proof that the tort system is dysfunctional. After all, if only a small percentage of malpractice victims sue, then there is likely to be significant under-deterrence of bad medical practices and significant under-compensation of injured patients. And, if the point of tort law is-as courts and commentators commonly say-to deter and compensate, it follows inexorably that we have a problem. Enter theory. The preceding syllogism, of course, starts from an initial condition: if the point of tort is to deter and compensate, then .... Now some would say that this particular condition is definitional or axiomatic: What else can tort law promise to deliver? But this is a mistake. The claim that the purpose of tort law is to deter and compensate is not an analytic truth. Rather it is shorthand Associate Dean for Research and Professor, Vanderbilt University Law School. Thanks to the Roscoe Pound Institute for sponsoring this symposium, and to fellow participants for very helpful comments on an earlier version of this paper. Remaining errors are my own