In earlier installments of this series I discussed some of the problems with the current malpractice system, proposed a contractual, no-fault alternative, presented ten principles to guide tort reform, and explained how my proposal would free the patient and the doctor. In this post I explain how it would free expert witnesses and the courts.

Free the Experts

All too often, expert witnesses in tort cases appear time and again for one side or the other. They are selected as witnesses precisely because their testimony can be counted on to be overly generous to one of the two sides. Further, these witnesses are often handsomely paid, which gives them an incentive to continue the practice and become “professional witnesses.”

These witnesses would have no role in a properly run system of arbitration. The arbitrators would be free to call on real experts who would be agents of the arbitrator rather than agents of one of the two parties.

A model for the arbitrators is the so-called “vaccine court,” a branch of the US Court of Federal Claims in Washington. The vaccine court was created in 1986 as Congress’s response to a liability crisis. In rare cases, vaccines were being blamed for catastrophic injuries and even death. Manufacturers were threatening to quit the business, which in turn threatened the vaccine supply. The National Vaccine Injury Compensation Act shielded the industry from civil litigation by instituting a system of no-fault compensation. Under the law, aggrieved families file petitions, which are heard by special masters in the vaccine court. Successful claims are paid from a trust fund fed by a 75-cent surcharge per vaccine dose. The US Department of Health and Human Services oversees the fund, with the Justice Department acting as its lawyer.

Free the Courts

The reformed system I have described should be available in all cases except gross negligence. Medical practitioners should be able to contract away responsibility for mistakes. They should also be able to insure against the consequences of their mistakes. There seems to be no socially defensible reason, however, to allow them to contract out of the consequences of gross negligence.

In the next installment of this series I will discuss eight advantages of replacing the current tort system with a liability-by-contract system. For more information, please see my book from the Independent Institute, Priceless: Curing the Healthcare Crisis.

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