Law Commons^™

What Are We Reforming? Tort Theory's Place In Debates Over Malpractice Reform, John C.P. Goldberg

Vanderbilt Law Review

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.' Assume this is a real phenomenon. What are we to make of it? …