Sunday, November 28, 2010
Would allowing "medical malpractice waivers" be a good idea?
Would it be a good idea to encourage patients to sign "medical malpractice waivers" to give up their rights to sue their doctor for any medical malpractice? In a chapter in his book "Nudge," Professor Cass Sunstein suggests that patients would benefit from such waivers because the cost of health care would be lower (because doctors wouldn't have to pay for medical malpractice insurance or order unnecessary tests to make sure their patients didn't sue them) and doctors could pass on the savings of avoiding those costs to their patients. Alan Crede has recently published a good response to this idea here. He also points out to an article by professors Tom Baker and Timothy Lytton in the Northwestern Law Review entitled, "Allowing Patients To Waive The Right To Sue For Medical Malpractice: A Response to Sunstein and Thaler." You can read the article here. Crede argues that the article is a devastating and complete knockdown of the chapter in "Nudge" in which Sunstein proposes medical malpractice liability waivers. Long time readers of this blog, and my students, may remember Baker as the author of a very good little book called the Medical Malpractice Myth (for an excerpt, go here). For a recent interview with him go here.