Volume 12, Issue 1 -

The law of negligence is designed to apply uniformly across contexts. Whether dealing with a car accident, medical malpractice, or a slip-and-fall case, tort law consistently asks whether a defendant owed a duty of care to the plaintiff and whether he exercised reasonable care in fulfilling that duty. Tort law defenses, too, are generally understood to be context-neutral. The doctrines of comparative negligence and assumption of risk should not vary depending on the precise circumstances surrounding an injury. And yet, there is a peculiar inconsistency in how some defenses are applied in cases of medical malpractice as compared to cases outside the health care context. Specifically, reliance on secondary implied assumption of risk seems to require greater knowledge on the part of the plaintiff in malpractice cases than in other contexts. In recreational sport cases, for example, a plaintiff will be denied recovery if he voluntarily encountered a known risk of physical injury – regardless of whether he understood that the risk was the result of a defendant’s negligence. In contrast, in medical malpractice cases, most people’s intuition is that the plaintiff’s recovery should be denied or limited only if he had knowledge of the risk of physical injury as well as the fact that this risk was created by a negligent defendant. There is no clear doctrinal explanation for this distinction. This article describes this conundrum and poses the question of whether and when such context-specific adjustments might be doctrinally justified. Ultimately, the most likely explanation is grounded in medical exceptionalist claims that the unique nature of health care justifies a more flexible and nuanced application of legal doctrine. While this conclusion may be unsatisfying to some, it presents a valuable opportunity to revisit debates about the supposed context-neutrality of tort law.

Public hospitals are critical institutions in the American healthcare delivery system. Yet because they are publicly owned, they sit apart from the rest of the medical sector, enjoying in some instances immunities from suit or significant limitations on damage recovery due to their public status. In today’s environment where states have legislated carefully balanced systems regulating medical malpractice liability, the prospect of immunity provides public hospitals and their employees, additional, in many cases more stringent protection from suit. This aspect of public hospital immunity has been obscured by the variety of systems from state to state governing immunity of public entities and their employees. The attention paid the subject appears to be in inverse relationship to the significance of public hospitals in our health care system. Public hospitals provide care for large segments of the population and are particularly important providers of care for poor, urban, and un- or underinsured citizens. They are centers offering specialized care and around which specialized care providers are organized in many communities. Public hospitals are particularly associated with transplant and burn centers. In addition, they are usually the highest-level trauma care centers in the communities they support. Much of what makes public hospitals critical to their communities relates to their propensity to be centers of education and training. They are often associated with medical schools, offering clinical training opportunities to medical students and are either partners with medical schools in offering graduate medical education or sponsors of such education independently.

This article considers ways that torts decisions and doctrine may operate discriminatorily against the unhealthy. The discussion draws from one chapter of my recently published book, Healthism: Health Status Discrimination and the Law, specifically, the chapter on “Healthism in Private Law.” Healthism examines, across contexts, instances of discrimination based on health status, suggesting that in at least some circumstances, treating people differently because of their health status or health habits is normatively wrong and, thus, “healthist.” We discuss many examples in the book, but our ultimate goal is to introduce the term into the public lexicon and attune readers to additional examples, which, we maintain, abound: Consider non-smoking policies in public housing; airlines or movie theaters charging obese passengers for two seats; employers refusing to hire based on out-of-work health habits and conditions, including tobacco use and obesity; or a physician refusing to treat a patient with multiple conditions and a history of noncompliance. Each of these scenarios carries a potential for healthism.