Can the tort system regulate medical quality efficiently?
Finally, there are the familiar concerns about the dysfunctional nature of the tort system as a mechanism for regulating medical quality.49 Because of the small degree of overlap between who is injured by medical negligence and who files a malpractice claim, as well as the large administrative costs of adversarial litigation, the system is not an efficient compensation mechanism.50 The evidence that the system is effective in deterring medical negligence is limited, reflecting the small fraction of instances of negligent injury that result in claims and the fact that physician liability insurance premiums are not experience-rated.51 The law’s traditional reliance on custom to set the standard of care has meant that cost-effectiveness considerations have been largely disregarded, leading to standards that may not reflect socially optimal policy choices. Further, a large body of research suggests that juries often do not faithfully perform their assigned task of applying the legal standa
