What Are We Reforming? Tort Theory's 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. I 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.1 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.2 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 for a set of descriptive and normative claims that hang together and carry certain entailments. In other words, deterrence and compensation are watchwords for a particular theory of tort law. And, as it turns out, the theory is not a particularly compelling one.3 To posit that tort law is a system for deterring undesirable conduct and compensating injury victims is, essentially, to think of tort law as a branch of the administrative state. If you imagine a legislature delegating its powers to regulate unsafe conduct and to provide relief to victims of small-scale disasters to a newly created agency called the Department of Safety and Relief, you will have a general sense of the theory. It posits that, by doling out damage awards predicated on misconduct and injury, judges and jurors in tort cases perform the socially useful function of discouraging such conduct in the future and providing relief to at least some injured persons. So far so good, at least in terms of the internal coherence of the theory. But problems quickly emerge. Interpretively, compensationand-deterrence theorists have trouble explaining basic features of tort law, such as the requirement of proof of causation that applies to most torts. If the point really is to deter undesirable conduct and compensate the injured, why should the law care if this defendant's misconduct caused this plaintiff's injury? If there has been misconduct and injury, then, regardless of any causal relation between them, a payment by defendant to plaintiff will deter and compensate.4 Prescriptively, are we keen to have non-expert judges and juries decide on a one-off basis what sort of conduct ought to be deterred and which sorts of adverse consequences compensated? Wouldn't it be better to develop safety rules through notice-and-comment rulemaking and to design broad-based, low-transaction-cost compensation systems that promise to achieve greater equity across cases?5 Of course there is a lot more to be said in defense and criticism of compensation-deterrence theory. Suppose I'm right, though, that it faces a set of serious deficiencies. What would a more descriptively complete and prescriptively plausible theory of tort look like? I've elsewhere argued, along with Professor Zipursky, that tort is best understood as a law for the redress of private wrongs.6 Taking seriously tort's structure, vocabulary and 'grammar',7 leads one to grasp that the point of this body of law is to articulate duties of conduct that individuals and entities owe to one another, and to empower those injured by breaches of these duties (i. …