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The Problem of Malpractice: Trying to Round Out the Circle, 27 University of Toronto Law Journal 131 (1977)


The problem of medical malpractice is difficult only if one believes that liability rules are important tools for achieving what I have elsewhere called primary accident cost reduction—that is, the minimization of the sum of medical accident costs and medical safety costs. In the medical context this 'economic efficiency' motive is no different from the knotty problem of 'achieving the highest quality of medical care' where (if we are not to be silly or fatuous) highest quality implies 'considering the price.'

I have not said that the desire to reduce the sum of medical accident and medical accident avoidance costs by itself makes medical malpractice a difficult problem. If one believes that collective, regulatory approaches suffice to limit medical maloccurrences to those, and only those, which would be too costly to avoid, then medical malpractice as we know it today, or generally discuss it in reform proposals, becomes unimportant. If governmental rules or peer group controls, roughly akin to building codes—I believe they are called professional standards review organizations (PSROS) in the United States—can determine what medical care is worthwhile—and to be mandated—and what is noxious or simply too costly—and to be proscribed (I exaggerate the ideological purity of the approach, of course) then efficient medical care can be achieved without the dubious benefits of torts law, and one need not discuss the issue further.

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