Showing papers in "Journal of Tort Law in 2006"
TL;DR: Cooter and Porat as mentioned in this paper proposed that legislatures give courts the choice of lowering tort damages for doctors in well defined circumstances, and for their mandatory choices in particular, and suggest some principles for doing so.
Abstract: According to legal principles, a driver who negligently breaks a pedestrian’s leg should pay the same damages as a doctor who negligently breaks a patient’s leg. According to economic principles, however, the driver should pay more than the doctor. Non-negligent drivers impose risk on others without being liable for it. When liability externalities are mainly negative as with driving, liability should increase beyond full compensation to discourage the activity. Unlike pedestrians, patients contract with doctors for treatment and willingly submit to the risk of harm. Imperfections in medical markets cause some kinds of doctors to convey more positive than negative externalities on their patients. Increasing liability for these doctors would discourage an activity that needs encouragement. The argument for decreasing doctors’ liability is especially strong when doctors must choose among risky procedures, such as cesarean or vaginal delivery of a baby, which we call a “mandatory choice”. Given equal benefits, the doctor ought to choose the least risky alternative. If the doctor negligently chooses a more risky alternative and harm materializes, courts award damages equal to the harm suffered by the patient. Even without the doctor’s faulty choice, however, the patient would have been exposed to the least risky alternative. Economic efficiency requires reducing the doctor’s liability below the victim’s actual harm, which current legal rules usually prohibit. We propose that legislatures give courts the choice of lowering tort damages for doctors in well defined circumstances, and for their mandatory choices in particular, and we suggest some principles for doing so. ∗Robert Cooter is Herman Selvin Professor of Law, University of California at Berkeley. Ariel Porat is Alain Poher Professor of Law, Tel Aviv University Faculty of Law and Visiting Professor, University of Chicago Law School (Fall 2006). For helpful comments we wish to thank Jennifer Arlen, Ronen Avraham, Richard Craswell, Mark Geistfeld, Keith Hylton, Barak Medina, Ronen Perry, Mitch Polinsky, Steve Sugarman, Omri Yadlin, the participants in the law and economics workshops at Berkeley and Stanford, and the participants in the conference, “Tort Law and the Modern State”, Columbia University School of Law, 15-16 September 2006. We thank Arik Rosen and Jennifer Shakbatur for excellent research assistance.
61 citations
TL;DR: In this article, the authors argue that the traditional view that FDA warnings function as an initial form of consumer protection that is thereafter backstopped by tort remedies is wrong and that FDA regulation should be treated as occupying the field.
Abstract: This article critiques Richard Nagareda's proposal to use the promise of the legal preemption of tort suits as a carrot to stimulate pharmaceutical companies to generate more information about the adverse side effects of their drugs. Its first section critiques the traditional view that FDA warnings function as an initial form of consumer protection that is thereafter backstopped by tort remedies. The chief vice of this system is systematic overdeterrence of drug use, by treating FDA warnings as though they were only minimums when in many cases they were too severe. The article examines the modern \"presumption against preemption\" and urges the adoption of a contrary position whereby the comprehensive nature of FDA regulation should be treated as occupying the field. The article then discusses the recent FDA efforts to secure that result through its own interpretive preamble. That approach might yield the correct approach in any individual case, based on a presumption of judicial deference to administrative decisions under the Chevron doctrine. On balance, however, the Chevron approach runs the enormous risk of agency flip-flop, driven by powerful political forces. Accordingly, the wiser approach treats preemption as a matter of law to be decided by judges without deference. The article also contains an evaluation of the modern decisions that have examined federal preemption in duty to warn cases, and concludes that modern technology provides so many sources of information about drug side effects that we should reject the Nagareda proposal to tie FDA protection against tort suits to the provision of additional information to the FDA.
10 citations