their lives and health, cause their insurance premiums to rise,123 and may
jeopardize their licenses.124 Medical malpractice is completely different.
Aside from tort liability, malpractice causes little inconvenience to those who
commit it. In fact, they may profit from it by being paid first for delivery of
the services that cause patients harm and then a second time for correcting
Nor do healthcare providers risk other serious consequences by harming
patients. State medical boards are slow to investigate errors, slower to discipline providers, and slower still to censure them or restrict their licenses.126
As a result, the likelihood that a hospital would suffer any regulatory censure
as a result of harming a patient is also remote.
In the healthcare context, then, the tort system carries the heavy burden of
creating incentives that motivate primary actors to do better than they otherwise would. The system’s ability to perform this function is already impaired,
not least because many states have capped patients’ damage recoveries and
restricted their ability to sue in other ways.127 Yet recent evidence shows that
the liability system continues to exert a patient-protecting effect.128 The
MOOPL proposal would endanger the system’s continued success by further
insulating providers from the costs of medical mistakes.
123. Kim Peterson, Car Accident? Here’s How Much Your Rates Could Rise, CBS (
January 27, 2015, 12:01 AM), http://www.cbsnews.com/news/heres-how-much-your-rates-could-rise-after-an-accident/.
124. Melissa Crumish, Actions That lead to the Loss of Driving Privileges, DMV.ORG
(June 10, 2012), http://www.dmv.org/articles/actions-that-lead-to-the-loss-of-driving-privileges/.
125. See Manoj Jain, Medical Errors Are Hard for Doctor’s to Admit, But it’s Wise to
Apologize to Patients, WASH. POST (May 27, 2013), https://www.washingtonpost.com/
126. See Peter Eisler & Barbara Hansen, Thousands of Doctors Practicing Despite Errors, Misconduct, USA TODAY (Aug. 20, 2013, 7:06 PM), http://www.usatoday.com/story/
news/nation/2013/08/20/doctors-licenses-medical-boards/2655513/ (concluding that “
[d]oc-tors with the worst malpractice records keep treating patients: Among the nearly 100,000 doctors who made payments to resolve malpractice claims from 2001 to 2011, roughly 800 were
responsible for 10% of all the dollars paid and their total payouts averaged about $5.2 million
per doctor. Yet fewer than one in five faced any sort of licensure action by their state medical
127. See Zenon Zabinski & Bernard S. Black, The Deterrent Effect of Tort Law: Evidence
from Medical Malpractice Reform 6 (Nw. Univ. Inst. Pol’y Res., Working Paper No. 13-xx,
2015), available at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2161362.
128. See id. at 2 (finding strong evidence that patient safety generally falls after the reforms); Darius N. Lakdawalla & Seth A. Seabury, The Welfare Effects of Medical Malpractice
Liability, 32 INT. REV. L. ECON. 356, 356 (2012) (asserting that malpractice liability leads to
modest reductions in patient mortality; the value of these more than likely exceeds the cost
impacts of malpractice liability).