ABSTRACT
Some injurers, such as large medical facilities, are involved in many accidents, even when they act reasonably. Under prevailing law, these injurers are liable only for the harm they cause by failing to take reasonable care. To reach a finding of liability, courts must review every incident to determine whether the injurer was negligent and, if so, whether the negligent conduct was the but-for cause of the injury. However, it is often easier and more accurate to determine whether an injurer negligently caused unreasonable harm to some (unknown) victims, based on outcomes, than to examine the injurer’s conduct in each incident. For example, suppose a court determines that it is reasonable for 100 patients to contract an infection during hospitalization. In that case, it can surmise that when 150 patients have contracted an infection, the hospital or its employees negligently caused harm to 50 patients. In light of this informational advantage, this article examines an aggregated liability regime that, like a strict liability regime, depends solely on outcomes. However, this aggregated regime requires the injurer to pay only for harm that could reasonably have been avoided, like under a negligence regime. This article shows that when applied to medical facilities, the proposed regime increases the chances that negligent hospitals will compensate victims while significantly decreasing the direct and indirect costs of investigating suspected malpractice cases individually. Last, the article shows that aggregated liability can be applied to other tortfeasors, such as polluting factories and product manufacturers, and that it offers significant advantages when applied to manufacturers of smart devices and other AI products.
Pelled, Omer, Aggregating Liability for Medical Malpractice (January 18, 2024), Yale Journal of Health Policy, Law, and Ethics, Forthcoming.
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