Ongoing tort reform efforts attest to the significant burden that medical liability imposes on the health care system. (1) General attempts to curb excesses can narrow socioeconomic disparities, but as Clark Havighurst and Barak Richman observe, such measures may leave intact some of the regressive characteristics of the framework they supplant. (2) Therefore, it seems appropriate to question whether tort law offers a proper platform for distributive justice. Would restrictions or other changes in medical liability unduly sacrifice individual justice for corporate justice? Would solutions outside tort law enhance distributive justice as--or perhaps more--effectively, while still giving each person his or her due?
To help resolve these questions, this article continues where Havighurst and Richman left off with medical malpractice. Part II revisits their suggested reforms to show how a tort-centered approach might aggravate socioeconomic disparities without dramatically leveling the playing field. Parts III through V of the article explain why pharmaceutical litigation again teaches that discretion may be the better part of valor when it comes to amending tort law for the sake of distributive justice. Although it is difficult to determine how the billions of dollars in products liability translate in terms of additional burdens on the health care system, further scrutiny is warranted before overarching pronouncements are made about the progressive or regressive tendencies of medical torts, considering the sheer scale of mass pharmaceutical litigation. Accordingly, Part III first discusses how traditional perceptions of class actions and market forces create the expectation that--economic damages aside-pharmaceutical torts afford average Americans a relatively fair opportunity for restitution. Part IV surveys major pharmaceutical products liability cases from the past two to three decades to illustrate how overriding concerns for individual justice render class actions inert as a vehicle for distributive justice. Part V highlights important differences between individually adjudicated, plaintiff-by-plaintiff drug liability cases and ordinary, patient-by-patient medical malpractice litigation that help preserve mass pharmaceutical actions. To capture some of the divergent influences on distributive justice, Part VI explores the downstream effects of drug liability and the litigation process itself. The article concludes that, until empirical evidence clarifies the net distributive impact of pharmaceutical torts, the capacity for tort reform to rectify distributive injustices in health care will remain far from obvious. (3)
Beginning first in the medical malpractice context, Havighurst and Richman note that defensive medicine and liability insurance exacerbate distributive injustices in health care. (4) Wealthier patients receive more care and siphon more money from the malpractice insurance pool because of their greater propensity and capacity to sue. (5) Litigious inclinations aside, higher-income patients also command a disproportionate share of the liability funds because of higher economic damage assessments. (6) Thus, the fallout from malpractice claims (defensive medicine and the passing of liability costs onto patients) and the adjudication process itself (income-based compensation) exert regressive effects.
Recognizing both these facets of malpractice suits, Havighurst and Richman propose solutions that address each in turn. (7) Their plea for freedom to negotiate care could substantially decrease the estimated $70-$126 billion spent on defensive medicine per year. (8) However, less affluent patients may suffer a severe disadvantage with regard to information. "Care by contract" may prompt them to forego services that preserve health and save money in the long run. (9) The state of affairs might thereby transform from one in which less wealthy patients pay for care they do not want, to one where they want--or need--care that they can even less afford. …