ABORTION, INFORMED CONSENT, AND REGULATORY SPILLOVER
Since Roe v. Wade, the struggle between women’s right to abortion and state power to regulate that right has been conventionally understood to proceed along vertical lines. The state’s boundaries have defined the terrain on which abortion restrictions clash with women’s reproductive freedom.
This Article uncovers a previously unnoticed horizontal dimension of that struggle: the medical-malpractice penalties imposed upon doctors for failing to fully inform patients about abortion risks; the states’ unbridled power to define those risks, along with doctors’ informed-consent obligations and penalties; and, critically, the possibility that such standards might cross state lines. Planned Parenthood v. Casey and other decisions that have approved abortion-specific informed-consent requirements have failed to account for the prospect of regulatory spillover.
In recent years, fourteen states, led by South Dakota, have enacted statutes that direct doctors to warn patients, as part of an informed-consent dialogue, that abortion might cause depression, and even suicide ideation and actual suicide. Although there is broad medical consensus that such warnings are unnecessary, courts have nonetheless concluded that the Supreme Court’s Casey decision shields them from constitutional challenge. This may have implications not just in the states that mandate such warnings, but nationwide. Because doctors’ informed-consent obligations incorporate medical information and practices from other jurisdictions, a doctor’s failure to warn a patient about post-abortion depression may expose her to liability for medical malpractice—even where her own state does not mandate such a warning statutorily. Eliminating this risk by warning a patient that abortion might lead to depression costs the doctor much less than the penalties she might incur for withholding that information.
This dynamic—which we term the “South Dakota effect”—threatens to transform informed-consent practices across the country, with profound consequences for women’s willingness to elect abortion and for the experiences of women who choose to go forward with abortion procedures. More broadly, it highlights the need to rethink the abortion-federalism nexus.
Abortion, Informed Consent, and Regulatory Spillover, 92 Indiana Law Journal 1-54(2016) (with Katerine Shaw) download
TOWARD A THEORY OF MEDICAL MALPRACTICE
This Article introduces a novel methodology for understanding medical malpractice law and guiding its reform. I divide the legal rules that apply in medical malpractice cases into four basic categories: “entry rules,” “exit rules,” “treatment rules,” and “setup rules.” The first two of these categories of rules intersect with the other two categories. Our medical malpractice system thus consists of treatment-related and setup-related entry and exit rules.
Based on this taxonomy, I demonstrate how our medical malpractice system responds to two major concerns about legal rules: form and institutional competence. As far as form is concerned, our system systematically prefers articulated high-resolution rules over broad standards as a basis for courts’ determinations of the adequacy of the medical treatment complained against by the plaintiff. The system resorts predominantly to broad standards as a basis for courts’ assessments of whether medical care providers adequately set up the physical and informational conditions for their patient’s treatment. Courts’ decisions in these two areas determine whether the defendant—a doctor or other provider of medical care—will enter into liability for medical malpractice. For exits from that liability, the system fashions narrowly tailored rules, which it generally (but not always) prefers over standards.
As far as institutional competence is concerned, the system authorizes the medical profession to devise rules identifying medical errors that make a patient’s treatment defective and actionable as malpractice (treatment-related entry rules). The system allows courts and the legislature, on one side, and the medical profession, on the other side, to design discrete components of the standards making doctors and other care providers responsible for setting up poor physical or informational conditions for treating patients (setup-related entry rules). Finally, the system gives courts a virtually exclusive power to formulate rules that allow a negligent care provider to escape liability for malpractice (treatment- and setup-related exit rules). Courts used this power to narrow malpractitioners’ exits from liability in torts: negligent doctors and other defaulting care providers normally cannot disassociate themselves from the aggrieved patient’s damage.
This interplay of rules and rulemaking powers pervasively affects our medical malpractice system: it narrows care providers’ liability for treatment-related malpractice; it expands care providers’ liability for setup-related malpractice; and it narrows negligent care providers’ ability to avoid the duty to compensate the aggrieved patient. The Article demonstrates that this system is both fair and efficient and criticizes tort reforms that reduce liability for malpractice.
Toward a Theory of Medical Malpractice, 97 Iowa Law Review 1201-1257 (2012) download
This Article analyzes the incentives of medical care organizations (MCOs) as healthcare intermediaries or, in a technical language, as platforms in a two-sided market for medical care. This feature of MCOs has been largely unnoticed, despite its profound implications for the quality of care and the law of medical malpractice. In what follows, I identify these implications and combine them with other factors - both legal and economic - that affect the quality of medical care under MCOs' framework. This discussion singles out a serious economic anomaly that the law of medical malpractice aggravates, instead of rectifying. This anomaly is the virtual absence of incentives on the part of MCOs and their doctors to compete with each other over the quality of medical care. The Article therefore offers a semi-regulatory law reform proposal that would unlock that competition.
This Essay exposes and analyzes a hitherto overlooked cost of the current design of tort law: its adverse effect on innovation. Tort liability for negligence, defective products, and medical malpractice is determined by reference to custom. We demonstrate that courts’ reliance on custom and conventional technologies as the benchmark of liability chills innovation and distorts its path. Specifically, the recourse to custom taxes innovators and subsidizes replicators of conventional technologies. We explore the causes and consequences of this phenomenon and propose two possible ways to modify tort law in order to make it more welcoming of innovation.
Torts and Innovation, 107 Michigan Law Review 285-315 (2008) (with Gideon Parchomovsky) download