Medical Malpractice and the Goals of Tort Law‪.‬

Imagine that you have an eighteen-month old son who is suffering from severe pain in his back and legs, and after a consultation, the doctor insists that you are simply a neurotic, over-worded parent and sends you and your family to a psychiatrist. Upon getting a second opinion, you discover that your son has a tumour on his spine. Or, imagine that a family member receives a gall stone operation and ends up losing their pancreas, most of their stomach, small bowel and spleen. In addition, the doctor stitched through the mesenteric artery and failed to give a proper diagnosis before the operation. Your loved one dies shortly thereafter. As responses to these incidents, the doctors and hospital staff do not offer any apologies or explanations other than "it was just one of those things." The experience leaves you feeling angry, bitter, betrayed, and humiliated. The sad thing here is that these scenarios and post-incident reactions are based upon actual accounts reported from either the patients who were involved or their relatives. If you found yourself in one of these or an analogous situation, what would be your reaction? Would your only ambition be to get compensated and nothing else, or would you want to get some answers, accountability and perhaps the added assurance that the same thing does not happen to someone else? Some would say that in order to get these latter things, medical malpractice law needs to remain based in the tort system. However, the benefit of having the tort system play a role in medical malpractice law is not a universally held proposition as is evidenced by the following remark: