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Negligence in Law of Torts

Pertaining to the significance of negligence in law of torts, the given paper attempts to bring in light key features of negligence torts through comprehensive elaboration of various case laws.

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Dafe M Ugbeta

MALAY KR GHOSHAL KUMAR OF SUNDERBANS

Chun Yu Wong

Richard W Wright

Shiena Amodia

The Cambridge Law Journal

Paula Giliker

The paper has dual aim: to analyse the structure of negligence, and to use it to offer an explanation of responsibility (for actions, omissions, consequences) in terms of the relations which must exist between the action (omission, etc.) and the agents powers of rational agency if the agent is responsible for the action. The discussion involves reflections on the relations between the law and the morality of negligence, the difference between negligence and strict liability, the role of excuses and the grounds of duties to pay damages.

Mitali Jain

Public awareness towards medical negligence is developing in India due to which, it now days have turned into one of the significant issues in India. Medical profession, however, is one of the noblest professions, still is not invulnerable to negligence which at times results in death of patient or complete / partial impairment of limbs, or culminates into another misery. Negligence by doctors has always been determined by judges who are not trained in medical science, who depend on the experts' conclusion and settle on the premise of essential standards of reasonableness and prudence. This leads to a lot of subjectivity in the decision and the exertion is to decrease it and have certain objective criteria. In this manner, there is a steady tussle between the established procedures and innovative methods. These issues make it extremely challenging to decide negligence by doctors. The present paper aims to analyze the concept of negligence in the medical profession in the light of interpretation of law by the Supreme Court of India.

Annual Survey of India

B.C. Nirmal

Tort LawVol. LVII] 619 * Former Vice-chancellor, National University of Study and Research in Law, Ranchi, and Former Dean, Faculty of Law, Banaras Hindu University. The author acknowledges the research assistance provided by Rabindra Kr. Pathak, Assistant Professor, NUSRL, Ranchi. 1 M Stuart Madden, “Tort Law Through Time And Culture: Themes of Economic Efficiency” in M Stuart Madden (ed) Exploring Tort Law 12 (Cambridge University Press, 2005). 2 Matthew D. Adler, “Corrective Justice and Liability for Global Warming” 155 U. Pa. L. Rev. 1859 (2007). 3 Hanoch Sheinman, “Tort Law and Corrective Justice” 22 Law and Philosophy 21(2003). 4 “A draft code of torts for India was prepared by Sir Frederick Pollock but it was never enacted into law.” See, M C Setalvad, The Common Law in India 110 (London, Steven and Sons Limited, 1960). 5 Per Krishna Iyer, J in Rohatas Industries Limited v. Rohats Industries Staff Union, AIR 1976 SC 425. LAW OF TORT B C Nirmal* I INTRODUCTION TORT LAW represents a society’s revealed truth as to the behaviours it wishes to encourage and the behaviours it wishes to discourage. The sphere of tort law is getting wider as a result of the felt necessities of the prevailing times, more so in areas such as climate change that requires a revisitation to the foundational idea of corrective justice, an idea so essential to understand the working of tort law. However, as regards tort law in India, based upon Common Law and largely uncodified, this law has evolved keeping in view the ‘local conditions’ as it was believed that we cannot incorporate English torts without any adaptation into Indian law. This process of evolution and adaptation rests upon the contribution made by way of judicial pronouncements. The ‘survey’ seeks to map the growth of tort law each year taking into the account the judgments of the Supreme Court and the high courts that contribute to its growth. This year’s survey explores some of the important judgments that need to be discussed in order to understand and appreciate the incremental growth that has taken place in tort law.

jeremy horder

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Malpractice Liability and Health Care Quality

Michelle m. mello.

Stanford Law School, Stanford University School of Medicine, Stanford, CA

Department of Medicine, Stanford University School of Medicine, Stanford, CA

Michael D. Frakes

Duke Law School

Erik Blumenkranz

David m. studdert, associated data.

The tort liability system is intended to serve three functions: compensate patients who sustain injury from negligence, provide corrective justice, and deter negligence. Deterrence, in theory, occurs because clinicians know that they may experience adverse consequences if they negligently injure patients.

To review empirical findings regarding the association between malpractice liability risk (i.e., the extent to which clinicians face the threat of being sued and having to pay damages) and healthcare quality and safety.

Data sources and study selection

Systematic search of multiple databases for studies published between January 1, 1990 and November 25, 2019 examining the relationship between malpractice liability risk measures and health outcomes or structural and process indicators of healthcare quality.

Data extraction and synthesis

Information on the exposure and outcome measures, results, and acknowledged limitations was extracted by 2 reviewers. Meta-analytic pooling was not possible due to variations in study designs; therefore, studies were summarized descriptively and assessed qualitatively.

Main outcomes and measures

Associations between malpractice risk measures and healthcare quality and safety outcomes. Exposure measures included physicians’ malpractice insurance premiums, state tort reforms, frequency of paid claims, average claim payment, physicians’ claims history, total malpractice payments, jury awards, the presence of an immunity from malpractice liability, the Centers for Medicare and Medicaid Services’ Medicare Malpractice Geographic Practice Cost Index, and composite measures combining these measures. Outcome measures included patient mortality; hospital readmissions, avoidable admissions, and prolonged length of stay; receipt of cancer screening; Agency for Healthcare Research and Quality Patient Safety Indicators and other measures of adverse events; measures of hospital and nursing home quality; and patient satisfaction.

Thirty-seven studies were included; 28 examined hospital care only and 16 focused on obstetrical care. Among obstetrical care studies, 9 found no significant association between liability risk and outcomes (such as Apgar score and birth injuries) and 7 found limited evidence for an association. Among 20 studies of patient mortality in non-obstetrical care settings, 15 found no evidence of an association with liability risk and 5 found limited evidence. Among 7 studies that examined hospital readmissions and avoidable initial hospitalizations, none found evidence of an association between liability risk and outcomes. Among 12 studies of other measures (e.g., Patient Safety Indicators, process-of-care quality measures, patient satisfaction), 7 found no association between liability risk and these outcomes and 5 identified significant associations in some analyses.

Conclusions and Relevance

In this systematic review, most studies found no association between measures of malpractice liability risk and healthcare quality and outcomes. Although gaps in the evidence remain, the available findings suggested that greater tort liability, at least in its current form, was not associated with improved quality of care.

The medical liability system is intended to serve three functions: compensate patients injured by negligence, promote corrective justice by providing a mechanism to rectify wrongful losses caused by defendants, and deter negligence. 1 Deterrence is the notion that liability can make healthcare safer. Theoretically, clinicians will respond to the threat of being held liable for malpractice. Because evidence suggests that the tort system performs poorly as a means of providing patients with compensation for injuries related to negligence 2 and rarely provides meaningful corrective justice, 2 , 3 a belief in deterrence motivates many defenders of the tort system. 4

Whereas deterrence leads clinicians to calibrate safety responses so that the costs do not exceed the benefits, a related phenomenon, defensive medicine, reflects responses that are costly and provide little or no clinical benefit. Evidence of defensive medicine is common, 5 whereas evidence of deterrence is more elusive. The standard approach in deterrence studies is to compare levels of healthcare quality across environments with relatively high and low liability risk. This approach cannot evaluate what healthcare quality would be like in the absence of liability risk, but can reveal whether the extent of liability risk is related to health care outcomes.

Does malpractice liability risk—that is, the extent to which clinicians face the threat of being sued and having to pay damages—contribute to improvements in the quality and safety of healthcare? The question is relevant to assessing the role of the liability system in the patient safety movement. Because malpractice litigation might inhibit error disclosure, clinicians may view tort litigation as counterproductive to quality improvement; 6 yet, legal practitioners view injury prevention as one of the fundamental functions of tort law. The question matters for tort reform efforts, as skepticism about the deterrent effect of malpractice litigation reinforces arguments that liability can be limited without risking the quality of care.

The objective of this systematic review was to evaluate the association between malpractice liability risk and healthcare quality and safety, and thereby assess the evidence for deterrence as it relates to clinicians.

Search Strategy and Study Eligibility

We performed a systematic review in July 2018 of articles published or otherwise made public from January 1, 1990 to July 10, 2018; results were subsequently updated with an additional search through November 25, 2019. The search protocol was registered on PROSPERO ( https://www.crd.york.ac.uk/prospero/ , number CRD42018103723) and is provided in sections S1 and S2 of the Supplemental Appendix . We searched 5 databases (Web of Science, MEDLINE/PubMed, Westlaw, EconLit, and SSRN) using combinations of keywords related to liability risk (e.g., malpractice, liability, tort, deter, negligence, defensive, litigation) and measures of health-related outcomes (e.g., outcome, quality, safety, care, deter, patient) (exact strings for each database provided in Supplemental Appendix section S3 ). For example, the search string used for Web of Science was “TI=(malpractice OR liab* OR tort OR deter OR deterren* OR negligen* OR defensive OR litigation) AND TS=(physician OR doctor OR hospital OR clinic OR provider OR practitioner) AND TS=(quality OR safety OR deter* OR outcome OR care OR patient) AND CU=(USA)”. We also examined the bibliographies of relevant articles for citations to additional papers, and included relevant working papers known to us through conference presentations and personal contacts with colleagues; together these methods added 5 studies to the sample.

After eliminating duplicate articles, we reviewed the articles retrieved and applied prespecified inclusion criteria. These criteria identified original empirical studies of the association between indicators of malpractice liability risk and indicators of healthcare quality and safety that used study approaches (e.g., multivariable regression analysis) designed to address potential sources of confounding. To identify healthcare quality measures, we used the Donabedian framework 7 and included measures of structure, process, and outcomes that unambiguously reflect good or poor quality care. Thus, services such as prenatal care and receiving beta blockers after myocardial infarction met our criteria (process), as did nurse staffing ratios (structure). Studies that examined the relationship between liability risk and measures that are more reflective of costs than quality were not included. For these reasons, studies focusing on caesarean deliveries and most types of diagnostic tests were excluded. Such services are considered overutilized, due in part to defensive medicine. Unless studies accounted for clinical circumstances that distinguished appropriate from inappropriate use (for example, separating elderly from young patients in examining screening mammography 8 ), they were deemed unhelpful in assessing deterrence. If a study examined multiple outcome measures, we included only analyses of outcomes that met our criteria.

Each study was reviewed for potential inclusion by 1 reviewer. When review of the title and abstract alone was insufficient to reach a decision about the eligibility of the study for inclusion, the full text was reviewed. If the reviewer remained uncertain as to whether a study met inclusion criteria, all 3 reviewers reviewed the full text of the study and resolved the issue through discussion.

To update the search results prior to publication of this review, supplemental searches using the same protocol with date range July 2018 to November 25, 2019 were performed.

Data Extraction and Synthesis

For each eligible study, we extracted into an Excel spreadsheet information on the authors, year published or released, exposure measures, outcome measures, data sources, sample size, level of analysis (patient, facility, physician, or geographic unit), results (direction and magnitude of association with malpractice risk variables), authors’ conclusions, and acknowledged limitations. The reported findings were considered to be in the direction of deterrence if greater liability risk was associated with better outcomes, whereas reported findings were considered to be in an anti-deterrence or reverse deterrence direction if greater liability risk was associated with worse outcomes. Study type is not reported because all but one study (a case-control analysis of emergency physicians) 9 took the same basic approach of using multivariable regression analysis to examine a retrospective sample of one or more years of data.

Meta-analytic pooling was not possible due to variations in study features, especially the large number of different exposures and outcome measures modeled. Consequently, studies were summarized descriptively. We characterized as statistically significant those associations reported in the sampled studies that achieved the 0.05 significance level, except that we used significance levels corrected for multiple comparisons for studies that reported them. To avoid replicating possible bias in study authors’ selective emphasis of particular study results, we examined tables of regression results rather than relying on summaries from the study authors.

Quality Assessment

Because of the nature of the study designs, it was not possible to use existing instruments to assess the risk of bias in research. Existing tools for assessing observational studies (for example, Newcastle-Ottawa and ROBINS-I) were designed for clinical and epidemiologic studies, and no comparable tool is used in the field of econometrics. For that reason, we performed an independent, qualitative risk-of-bias assessment, summarizing the strengths and weaknesses of the study. To ensure rigor, each article was reviewed by 2 team members with training in econometrics who were not involved in the study being evaluated. In addition to extracting limitations acknowledged by the study authors, reviewers noted strengths and weaknesses pertaining to the data source (e.g., sample size, population covered, range of covariates incorporated, usefulness of measures, whether the data could support individual-level models), model estimation methods (e.g., identification strategy, control for confounders, potential endogeneity, robustness checks), and any concerns about the accuracy of the study authors’ characterizations of the study findings.

Study Characteristics

The original search identified 1949 unique studies as potentially eligible for inclusion; 1821 of these were screened out after review of the article title and abstract and another 128 were deemed ineligible after review of the full text ( Figure 1 ; details in Supplemental Appendix section S3 ). Thirty-three studies met our inclusion criteria, 4 of which were unpublished. The supplemental update search added 4 eligible studies. Selected characteristics of the final sample of 37 studies are presented in Table 1 and additional details are in Supplemental Appendix eTable 2 .

Study Identification and Selection

Selected Characteristics of the 37 Studies Included in the Qualitative Synthesis a

Abbreviations: MI, myocardial infarction; IHD, ischemic heart disease; PSI, Agency for Healthcare Research and Quality Patient Safety Indicator; RN, registered nurse; ADL, activities of daily living; UTI, urinary tract infection; CHD, coronary heart disease; VTE, venous thromboembolism; PSA, prostate-specific antigen; HCAHPS, Hospital Consumer Assessment of Healthcare Providers and Systems.

All studies used multivariable regression analysis to assess the association between the exposure and outcome variables in a longitudinal or cross-sectional sample. Because studies varied in their unit of analysis, from patient or physician to county, region, or state, the number of observations per study ranged from 50 to more than 132 million ( Table 1 ). For example, Dhankhar and Khan 10 analyzed 100 state-year observations and Yang et al. 11 analyzed 2,354,561 births.

Exposure Measures

The studies measured the extent of malpractice liability risk in a given environment in several ways ( Table 1 ). Physicians’ malpractice insurance premiums and the presence of liability-limiting tort reforms in the state were the most common exposure measures (n=21 studies). Other measures included the frequency of paid claims in the state or county (n=13), insurance premiums (n=7), average payment per paid claim (n=8), physicians’ claims history (n=5), total malpractice payments in the state or county (n=2), jury awards in the county (n=1), immunity from malpractice liability (n=1), the Centers for Medicare and Medicaid Services’ (CMS) Medicare Malpractice Geographic Practice Cost Index (MGPCI) (a measure of premium costs to physicians in local liability insurance markets) (n=1), and composite measures incorporating more than one of the foregoing (n=3). Data sources for exposure measures included the National Practitioner Data Bank (a national repository of information on paid malpractice claims), insurance industry rate surveys, the Centers for Medicare and Medicaid Services, jury awards databases, and 50-state summaries of state legal reforms.

Outcome Measures

Outcome measures included patient mortality; hospital readmissions, avoidable admissions, and prolonged length of stay; receipt of cancer screening services; Agency for Healthcare Research and Quality Patient Safety Indicators (PSIs) and other measures of adverse events and postoperative complications; measures of hospital and nursing home quality; and patient satisfaction (see Table 1 for measures used in each study). Three quarters of the studies (28/37) focused on hospital care only, and nearly half (16/37) focused on obstetrical care. Studies outside the obstetrics context commonly measured associations between liability risk and patient mortality, although more recent studies examined associations with PSIs. Data sources for outcome measures included Medicare and other claims data, vital statistics records, physician practice group databases, cancer registries, and surveys.

Evidence Relating to Obstetrical Care

Of the 16 studies examining obstetrical care, 9 identified no significant associations between liability risk and quality in the direction of deterrence ( Table 2 ). Seven studies found limited evidence of associations, i.e., the statistical significance, direction, or both of the associations were sensitive to the model specification used, the patient group studied, or the outcome measure examined.

Studies Examining Associations Between Malpractice Liability Risk Measures and Obstetrical Care, 1990–2019 (n=16) a

PSI = Patient Safety Indicator; JSL = joint-and-several liability rule reform; CSR = collateral-source offset rule reform

Several studies found no significant association between liability measures and outcomes in the direction of deterrence. Entman et al 12 found that obstetricians’ personal history of malpractice claims was not associated with quality of care or frequency of adverse events. Three studies using malpractice premiums as the exposure measure found no associations with Apgar scores, low birthweight, preterm birth, or birth injury. 11 , 13 , 14 In a study of military physicians, who are immune from malpractice litigation related to their care of active-duty servicemembers (but not other patients), Frakes and Gruber 15 found no association between immunity and several adverse birth outcomes (preventable delivery complications, neonatal mortality, neonatal trauma, and maternal trauma in vaginal deliveries). Two studies by Dubay et al 13 , 14 found that tort reforms were not associated with prenatal health care utilization, low birthweight, or Apgar scores. Frakes 16 also found no association between tort reforms and Apgar scores. Frakes and Jena 17 did not find tort reforms to be associated with any of several obstetrical PSIs. Kim 18 found neither claim frequency nor average claims payments were associated with prenatal care utilization or use of cesarean delivery in patients with breech presentation. Malak and Yang 19 found no association between tort reforms and infant mortality or preventable birth complications.

Several studies identified limited evidence of an association between liability measures and outcomes in the deterrence direction. Sloan et al 20 found a significant association between liability risk and birth outcomes in the direction of deterrence in 2 of 23 models tested. In county-level analyses using survey data, both claim frequency and total claims payments were associated with reduced risk of fetal mortality. However, these associations did not achieve statistical significance in physician-level models, and neither liability measure showed significant associations with any of the other 4 outcome variables (low Apgar score, 5-day neonatal mortality, infant mortality, or death or permanent impairment at age 5) in any model. In analyses using a larger sample of county birth records, no associations between liability risk measures and birth outcomes were significant at the p<0.05 level.

A subsequent study by Sloan et al 21 found claim frequency to be significantly associated with prenatal care utilization in the direction of deterrence in 1 of 8 models tested. In physician-level models, claim frequency was significantly associated with greater use of alpha-feto protein tests, but not with greater use of ultrasound or diabetes tests. The relationship between claim frequency and use of amniocentesis was significant in the direction opposite of deterrence (i.e., claim frequency was associated with less use of amniocentesis). In county-level models, no significant associations were observed between claim frequency and any of 4 measures of patient satisfaction (doctor is interested in your and your baby, doctor fully explained the reason for each test and procedure, doctor ignored what you told him/her, and you felt you could call doctor with questions).

Dhankhar and Khan 10 also examined claim frequency, along with mean payment amounts per paid claim. Among 56 models (in which patients with Medicaid coverage and those with private insurance, and births involving necessary and unnecessary cesarean sections, were analyzed separately), 53 models found no significant associations with the 7 birth outcomes examined. Two models found a significantly lower risk of neonatal respiratory distress among patients with private insurance and unnecessary c-sections. One model found a reverse deterrence association (i.e., increased claim frequency was associated with an increased risk of neonatal respiratory distress) for Medicaid patients with necessary c-sections.

Three studies that examined tort reforms also found no evidence of an association between liability risk and health outcomes in the direction of deterrence in most models. Klick and Stratmann 22 studied 7 tort reforms in relation to mortality among black and white infants (modeled separately) and found no significant deterrence associations in 25 of 28 models. Only collateral-source rule reform (which consists of deducting from plaintiffs’ malpractice awards amounts already reimbursed by insurance and other sources) was consistently associated with mortality across model specifications in the direction of deterrence (i.e., tort reform was associated with increased infant mortality), although this association was observed only among black infants. Joint-and-several liability reform (which consists, in cases involving multiple defendants, of limiting the damages each must pay to an amount proportional to that defendant’s percentage fault for the injury) was associated with increased mortality for white infants in 1 of 2 model specifications, but was not significant in either model specification for black infants. Two models produced reverse deterrence findings, i.e., greater liability was associated with worse outcomes. Currie and Macleod studied 4 tort reforms in relation to preventable birth complications and low Apgar scores, and found that noneconomic damages caps were associated with an increase in the preventable complication rate but were not associated with Apgar score. Joint-and-several liability reform was associated with a decrease in preventable complications, which is a reverse deterrence finding because that reform limits defendants’ liability. There was no significant association between joint-and-several liability reform and low Apgar score, or between the other tort reforms examined (punitive damages caps and collateral-source rule reform) and either of the outcomes. Iizuka 23 examined 4 tort reforms and 4 birth-related PSIs, modeling them at both the hospital and patient levels, and found that only collateral-source rule reform was significant in a direction consistent with deterrence, and only in hospital-level models that examined injuries to neonates (2.36 more injuries per hospital-year when collateral-source rule reform was implemented to reduce liability, p<0.01) and mothers (5.7 more injuries per hospital-year, p<0.05); neither of those associations was significant in the patient-level models.

In an analysis that examined the relationship between noneconomic damages caps and 3 PSIs plus a pooled PSI, Zabinski and Black 24 found more consistent associations in the direction of deterrence across model specifications, but only for maternal outcomes. In a model examining all states, the coefficient was significant and positive (i.e., in the direction of deterrence) for the pooled measure and 1 PSI (representing a 7% increase in the rate of maternal trauma in vaginal deliveries when noneconomic damages were capped), but not for the other 2 PSIs (neonatal injury and maternal trauma in deliveries without instruments). In single-state models, the association between noneconomic damages caps and outcomes was significant for the pooled measure and 1 PSI in 4 of 5 states, significant in 1 state for 1 PSI, and significant in 2 states for the other PSI.

Overall, studies found very limited or no evidence of associations between liability risk and outcomes in obstetrical care that indicate deterrence. The variations in findings were not clearly correlated with the choice of either the exposure measure or the outcome measure, although only 1 of the 6 studies that examined mortality as an outcome found any evidence of an association.

Evidence Concerning Patient Mortality

Twenty studies examined the relationship between liability risk and patient mortality (in settings other than obstetrical care) and 15 found no statistically significant associations in the direction of deterrence ( Table 3 ). Three studies reached different conclusions about deterrence depending on the liability measure modeled and states investigated, 24 – 26 and 2 studies yielded less equivocal evidence of deterrence. 27 , 28

Studies Examining Associations Between Malpractice Liability Risk Measures and Patient Mortality in Non-Obstetrical Contexts, 1990–2019 (n=20) a

MI = myocardial infarction; IHD = ischemic heart disease; CHD = coronary heart disease; CMS = Centers for Medicare and Medicaid Services

Of the 15 studies that reported no significant associations between liability measures and mortality in the deterrence direction, 9 used tort reforms as the measure of liability risk and 6 used claim frequency, average payment per paid claim, jury awards, or other measures ( Table 3 ). These studies were also diverse in the patient populations studied, ranging from narrowly defined disease groups (e.g., patients with bladder cancer, 29 patients undergoing cranial neurosurgery 30 ) to wide patient populations (e.g., all Medicare patients 31 , 32 ).

Two of the 3 studies that found limited evidence of deterrence used tort reforms as the measure of liability risk. Zabinski and Black 24 focused on noneconomic damages caps and found no significant deterrence relationships in 14 of 18 models tested, including all models that pooled data from more than one state. In 2 of 5 single-state models, damages caps were significantly associated with higher mortality for 2 of the 3 mortality measures (one individual PSI and a measure pooling 2 death PSIs). Shepherd 26 modeled 6 tort reforms and found that 2 (total damages caps and collateral-source rule reform) were significantly associated with state-level, non-motor-vehicle-related deaths in the direction of deterrence (i.e., deaths increased when liability was limited), whereas 2 (noneconomic damages caps and punitive damages reform) were significantly associated with mortality in a reverse-deterrence direction (deaths decreased when liability was limited), and 2 (periodic payment and joint-and-several liability reform) had nonsignificant results. A study by Dhankhar et al 25 that used claim frequency and average payments per paid claim as the liability risk measures found that an increase in the number of paid claims by one case per 100,000 population was associated with a statistically significant, 13% lower risk of in-hospital mortality among patients with myocardial infarction, but found no association between mean payment amounts and mortality.

Two studies found more consistent evidence of an association between liability risk and outcomes in the direction of deterrence. Lakdawalla and Seabury 27 estimated that a doubling of a county’s jury award dollars per capita in malpractice cases was associated with a 2% decrease in the county’s all-cause mortality rate; this is a surprisingly large effect size considering that only a small fraction of deaths were due to medical injury. Bilimoria et al 28 examined 3 measures of liability risk in a model of 30-day mortality for hospitalized patients with myocardial infarction, heart failure, and pneumonia. The authors found that claim frequency was not significantly associated with mortality, although higher Medicare Malpractice Geographic Practice Cost Index was significantly associated with lower mortality for all 3 conditions, and a composite liability measure was significantly associated with lower mortality for patients with heart failure. However, most studies found no evidence of an association between higher liability risk and lower patient mortality.

Evidence Relating to Avoidable Hospitalizations and Readmissions

Six studies examined the relationship between liability risk and hospital readmissions and a seventh examined associations with avoidable hospitalizations ( Table 4 ). All 6 studies found no significant association between liability risk and readmissions, despite testing diverse liability measures and patient populations ranging from narrow (e.g., patients undergoing colorectal surgery 33 ) to broad (e.g., patients seeing military physicians 15 ). In an analysis of avoidable hospitalizations, Frakes and Jena 17 found no significant association between 4 tort reforms (noneconomic damages caps, punitive damages caps, collateral-source rule reform, and joint-and-several liability reform) and hospital readmissions. 17

Studies Examining Associations Between Malpractice Liability Risk Measures and Readmissions and Avoidable Hospitalizations, 1990–2019 (n=7) a

MI = myocardial infarction; IHD = ischemic heart disease; CMS = Centers for Medicare and Medicaid Services

Evidence Concerning PSIs and Postoperative Complications

Six studies examined the association between liability risk and rates of PSIs or other measures of postoperative complications outside the obstetrical care context ( Table 5 ). Of these, 4 studies found no evidence of deterrence, 15 , 30 , 33 , 34 1 found evidence in only a small number of the many models included in the study, 28 and 1 found evidence in the majority of models tested. 24

Studies Examining Associations Between Malpractice Liability Risk Measures and Other Outcomes, 1990–2019 (n=12) a

PSI = patient safety indicator; CMS = Centers for Medicare and Medicaid Services; HCAHPS = Hospital Consumer Assessment of Healthcare Providers and Systems.

The variation in results across studies is not clearly attributable to the choice of exposure or outcome measures. 28 However, although the 4 studies that found no significant association between liability risk measures and health outcomes included a wide range of liability measures (claim frequency, average payments, premiums, legal immunity, and composite measures), none used tort reforms as the exposure measure. The study that reported limited evidence of deterrence, Bilimoria et al, 28 included tort reforms as an exposure measure and concluded there was no “consistent pattern of association” with 5 PSIs across the reforms (quantitative results were not reported). The same study found, in 15 other models testing the association of 3 other types of liability measures with each of the 5 PSIs, that findings were significant in the deterrence direction in 2 models (MGPCI and iatrogenic pneumothorax; and MGPCI and unintentional punctures/lacerations). Two models had significant results in the reverse deterrence direction, and 11 other models found no significant association between liability measures and outcomes.

A study by Zabinski and Black, 24 which tested noneconomic damages caps only, was an outlier in terms of findings, and identified evidence of deterrence in most (62/93) models tested. For example, in models that pooled multiple PSIs and all states, the authors found that caps were associated with a 0.16 percentage point increase in the incidence of any PSI (p<0.05) and a 0.04 percentage point increase in the incidence of operating room PSIs (p<0.05). The findings concerning deterrence were relatively consistent across pooled models, but were mixed for models of individual PSIs and single states.

Overall, most studies found that higher liability risk was not associated with improved performance on PSIs or decrease rates of postoperative complications.

Evidence Relating to Other Quality Measures

Two studies investigated the relationship between liability risk and rates of clinically appropriate cancer screening ( Table 5 ). Baicker and Chandra 8 identified significant associations between liability risk and mammography rates in models using mean malpractice claim payments as the exposure measure, but no significant associations in models using claim frequency or insurance premiums. Frakes and Jena 17 found no relationship between tort reforms and cancer screening rates.

Three studies examined process-of-care measures of quality ( Table 5 ). The study by Bilimoria et al 28 of 17 Hospital Compare measures found no significant associations in the direction of deterrence between the state malpractice environment and process-of-care quality measures. Stevenson et al 35 examined the relationship between a nursing home’s claims experience and 9 process and outcome measures of quality and also found no significant deterrence relationships. In analyses of nursing home quality, Konetzka et al 36 found a significant association in a deterrence direction in 1 of 3 models. Claim frequency was significantly associated with a more favorable ratio of registered nurse to total staffing hours, although the effect size was small (2.4% increase in the ratio for a 1-standard-deviation increase in claim frequency).

Two studies found no significant association between liability risk and patient satisfaction, although a third study found evidence of deterrence ( Table 5 ). Sloan et al 21 found no relationship between claim frequency and obstetrical patients’ satisfaction ratings, and Bilimoria et al 28 found that MGPCI, claim frequency, tort reforms, and a composite measure were not associated with Hospital Consumer Assessment of Healthcare Providers and Systems ratings. However, Carlson et al 9 found that emergency physicians who experienced a claim had significantly higher patient experience scores after the claim was filed (increase of 6.52 in Press Ganey percentile rank, 95% CI 0.67–12.38).

Qualitative Risk-of-Bias Assessment

Study-specific assessments of risk of bias are provided in Supplemental Appendix eTable 2 . Although the quality of these articles could not be assessed using standard quality assessment tools, the methodological assessment we conducted revealed that, with few exceptions, 10 , 25 , 26 most studies included in this review used appropriate analytical methods, including good controls for confounding and exploration of the robustness of results to changes in model specification. The varied study results were not evidently attributable to the choice of measures, analytic approaches, or sample sizes. Although all of the studies in this review have limitations, none can be dismissed as methodologically unsound. The study that had outlier findings, Zabinski and Black, 24 did not have obvious weaknesses other than its narrow focus on noneconomic damages caps.

However, the quality assessment identified several methodological limitations that may affect the ability of some studies to accurately measure the extent and nature of associations between the exposure and outcome measures. First, a general limitation of the evidence base examined is that all studies but one 15 examined that extent of change in the outcome measures when liability risk was higher versus lower, rather than the absolute effect associated with tort liability risk. Second, although studies that examined what happened during hospitalization may find no evidence of deterrence, it is possible that liability risk affects inpatient mix. In areas with high liability risk, physicians who are concerned about liability might be more inclined to admit to the hospital patients whose need for hospitalization is less clear (i.e., these patients may be healthier than other admitted patients on average). After tort reform is passed, there may be lower tendency to admit such patients, in which case the average admitted patient would have higher severity of illness and be more prone to poor outcomes. The most likely consequence of such selection effects would be spurious positive findings of deterrence; they are less likely to invalidate null findings.

Third, in some studies that used tort reforms as the exposure measure, only a few states adopted reforms during the study period. For example, in the study by Zabinski and Black 24 only 5 states changed their noneconomic damages caps laws in the years studied. In such circumstances, regression estimates may have low precision and be subject to confounding by unobserved, time-varying effects. 37

Fourth, some analyses may have unexplored problems of two-way causation. For instance, adverse events are an established risk factor for malpractice claims. 36 , 38 , 39 A regression model that evaluates the relationship between adverse event rates and claim frequency without accounting for this cannot support the kind of causal inference a firm conclusion about deterrence requires.

Fifth, some studies relied on state- or county-level outcomes data. For instance, Klick and Stratmann 22 used state infant mortality rates, Baicker and Chandra 8 used state-level mammography rates for Medicare patients, Shepherd 26 used state mortality rates for non-motor-vehicle accidents, and Lakdawalla and Seabury 27 used county all-cause mortality rates. Drawing causal inferences with such measures can be problematic because group aggregation reduces information and may mask important differences between individuals in the group. 40

Sixth, aggregation was also common in construction of exposure variables. Most studies measured liability risk indicators at the state or county level, rather than the level of the individual physician, and no studies measured physicians’ perceived levels of liability risk. Physicians may have different awareness of and reactions to such environmental indicators, making physician-level analyses preferable. More studies should examine whether particular physicians change their clinical behavior after they have been sued and, ideally, parse sued physicians according to the subjective intensity of their liability experience.

Seventh, some studies were narrow in focus. Kessler and McClellan 41 , 42 examined only patients hospitalized with 2 cardiac conditions; Konety et al 29 focused solely on patients with bladder cancer; Avraham and Schanzenbach 43 only studied deaths due to coronary heart disease; Missios and Bekelis 44 only included patients who had spine surgery; Bekelis et al 30 focused on patients who had undergone cranial neurosurgery; and Bilimoria et al 33 only included patient who had colorectal surgery. Findings from these distinct analyses may or may not replicable in broader samples.

This review of 37 studies of malpractice deterrence conducted since 1990 found that most studies suggest that higher risk of malpractice liability is not significantly associated with improved healthcare quality. Studies that examined obstetrical care were most likely to have identified some significant associations, but even in that domain there was inconsistency across analyses, including analyses within the same study, and most analyses did not identify evidence of deterrence. Notwithstanding some methodological shortcomings, collectively this body of evidence is sufficient to support a conclusion that higher tort liability risk was not systematically associated with safer or higher-quality care in the hospital setting. Because only a limited number of studies addressed care delivered in other settings, it is not possible to draw conclusions about deterrence in those clinical contexts.

In theory, the deterrence effect of malpractice liability risk could proceed through three mechanisms. The first is economic: malpractice claim payments impose a direct financial sanction. Most physicians are well insured for malpractice 45 and awards rarely exceed coverage limits, 46 but physicians may experience economic effects if their insurance premiums increase or their medicolegal track record adversely affects their clinical income. 47 Healthcare facilities may be affected by economic sanctions more readily than physicians because their insurance generally involves greater experience rating, meaning that premiums are determined in part based on how costly the facility’s claims were in a prior period. The second mechanism (which is less applicable to healthcare facilities) is that the psychological stress and trauma of litigation can be severe, and physicians will endeavor to avoid experiencing them. 48 , 49 The third mechanism is informational. Not all malpractice claims are meritorious, but some convey information about deviations from standards of care. Individual clinicians, healthcare facilities, health insurers, and regulators may then respond to those signals in ways that may prevent harm.

Our systematic review suggests that notwithstanding these theoretical mechanisms, malpractice liability risk may not be effective in preventing substandard care. One possible explanation relates to the etiology of medical error. Some errors involve momentary or inadvertent lapses at the individual clinician level. 50 , 51 Although hospitals might be able to implement systems to identify some such errors before they cause harm, other errors are not amenable to the kind of conscious precaution taking (at either the hospital or the physician level) on which the deterrence model relies.

Previous reports have identified 3 other problems, which have continuing relevance. 45 The first (and perhaps largest problem) is that most instances of medical negligence that cause harm never become malpractice claims, whereas many claims of uncertain or no merit are filed. The poor fit between claims and negligence introduces noise into the deterrent signal, reinforcing physicians’ perceptions that claims do not convey valid information about their quality of care.

Insurance is a second contributing factor. Unlike causing a motor vehicle crash, causing a malpractice injury does not ordinarily result in higher insurance premiums for the involved individual. It is actuarially difficult for insurers to apply experience rating at the physician level, so paid claims do not tend to manifest as direct economic sanctions for the physician. This is less of a problem at the facility level, where self-insurance and experience rating are common.

A third issue is uncertainty about the legal standard of care. Physicians complain that they do not know what “negligence” is—i.e., precisely what the law requires in a given clinical situation. Such uncertainty may contribute to undercutting the desired behavioral change.

Policy levers exist that could address these problems. For example, adopting enterprise liability, a reform that shifts the primary locus of liability from individual practitioners to larger organizations such as hospitals or accountable care organizations, would be helpful. 45 Organizations experience the economic aspect of deterrence more strongly than physicians because they are sued more often and have experience-rated insurance. 45 Organizations are also better positioned to effectuate changes in care that transcend individual practitioners. Another pertinent lever would be widespread implementation of communication-and-resolution programs (CRPs), through which healthcare facilities disclose adverse events to patients, rapidly investigate them, and offer proactive compensation when deviations from the standard of care have caused harm. 52 These programs could result in a higher proportion of negligent events receiving compensation, thereby reinforcing the economic and psychological mechanisms of deterrence. Further, under CRPs, injuries that are not due to negligence are less likely to become claims because facilities explain to patients what happened; preventing such claims strengthens the informational function of litigation because claims more reliably point to actual quality problems.

Limitations of the Systematic Review

This systematic review has several limitations. First, because studies of deterrence in the malpractice context are published in journals in a wide range of disciplines, there is a risk that some studies were missed. To minimize this risk, we searched multiple databases spanning the medical, public health, economics, business, and legal literatures. Second, some articles reported incomplete or vague information. Articles varied in the amount of detail provided about the data sources, data years analyzed, and model estimation methods employed. Additionally, some did not report full quantitative results for some models, and articles varied in how quantitative results were reported (e.g., with beta coefficients or odds ratios). Third, some articles reported the results of a very large number of different models and model specifications (for example, one reported 84 models 34 ). These circumstances complicated our effort to summarize studies and provide quantitative results that are interpretable and comparable across studies. Fourth, no validated instrument was available for assessing quality or risk of bias in studies of the type included in this review; consequently, this assessment has greater subjectivity than is optimal.

Conclusions

Is greater risk of malpractice liability associated with better quality of care?

In this systematic review of 37 studies of obstetrical care outcomes, patient mortality, hospital readmissions, avoidable hospitalizations, and other measures, statistically significant associations between liability risk and quality-related outcome measures were rarely observed. Most studies focused on inpatient care.

Most studies in this review found no association between greater risk of malpractice liability and healthcare quality.

Supplementary Material

Supplemental appendix, acknowledgments.

Dr. Frakes reported support from the National Institute on Aging, grant R01-AG049898. Dr. Studdert reported receiving grants from the Stanford University Medical Indemnity and Trust Insurance, which is wholly owned by Stanford Hospital and Clinics and Lucile Packard Children’s Hospital. Dr. Mello had full access to all the data in the study and takes responsibility for the integrity of the data and the accuracy of the data analysis. The data analysis was performed by M.M., M.F., E.B., and D.S.

Contributor Information

Michelle M. Mello, Stanford Law School, Stanford University School of Medicine, Stanford, CA. Department of Medicine, Stanford University School of Medicine, Stanford, CA.

Michael D. Frakes, Duke Law School.

Erik Blumenkranz, Stanford Law School, Stanford University School of Medicine, Stanford, CA.

David M. Studdert, Stanford Law School, Stanford University School of Medicine, Stanford, CA. Department of Medicine, Stanford University School of Medicine, Stanford, CA.

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The Law of Negligence, Blameworthy Action and the Relationality Thesis: A Dilemma for Goldberg and Zipursky’s Civil Recourse Theory of Tort Law

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• Published: 02 November 2021
• Volume 41 , pages 63–82, ( 2022 )

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In this paper, I discuss Goldberg and Zipursky’s Recognizing Wrongs and argue that there is a tension between their philosophy of action as applied to the law of negligence and the idea that the directive-based relationality thesis is central and, therefore, the action and conduct of the defendant should not be part of the core explanation of the tort of negligence.

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Introduction

Goldberg and Zipursky advance an intellectually rich and elaborate theory of tort law based on the key relational element that arises between the right of the claimant not to be injured or suffer loss, and the corresponding duty of the defendant not to violate the plaintiff’s right. The respective duty and right that arise, Goldberg and Zipursky Footnote 1 tell us, are the content of relational directives which result from legal practices within valid legal systems (pp. 92–98). They defend what they call a conduct theory of rights Footnote 2 and show that legal practices generate legal directives, whose content are indeterminate rights and duties. The institutionalised courts of law engage in the task of elucidating these rights and duties and issue directives (pp.46, p. 239 and pp. 254–259), and therefore rights and duties are neither general nor have their source in morality, but are rather a legal duty and a corresponding legal right of this specific plaintiff and this specific defendant once the courts have elucidated them.

The core arguments of Goldberg and Zipursky’s Recognizing Wrongs , are drawn from ideas and published materials emerging from a lengthy engagement with theorists who advocate either corrective justice as foundational of tort law or the view that law can be reduced to economic analysis. Footnote 3 For the former group of theorists Footnote 4 the relationship between the plaintiff and defendant as formulated by the pair right/duty, which will be called the relationality thesis, is paramount and the action or conduct of the defendant cannot be severed from the loss or injury suffered by the plaintiff. By contrast, for the latter group of theorists, the defendant’s action or conduct is severable from the loss or injury of the plaintiff. Furthermore, there is no intelligible or normative connection between them and, therefore, judgements of responsibility in tort law (for example, responsibility in negligence) lack any rational and principled foundation. Consequently, economic analysis theorists argue, tort law should be reduced to policy decisions made by judges whose main concern is to advance a scheme that guarantees a fair distribution of losses and gains. Like corrective justice theorists, Goldberg and Zipursky (p. 4, p.13, p.26, p.89 and p. 181) Footnote 5 argue that the relationality thesis is key to understanding and providing an intelligible unity to the complexity of torts or wrongs that are part of current common laws. Thus, defamation, nuisance, product liability, negligence, and privacy, all find a common core in the idea that a wrong has been committed and, therefore, a breach of a duty has occurred, which corresponds to the right of the defendant not to be injured or suffer loss. Unlike corrective justice theorists, however, Goldberg and Zipursky do not rely on the Kantian framework of rights and duties, conceptions of personhood or rational agency. Footnote 6 Goldberg and Zipursky ground rights and duties on the emergence of practice-based directives. This view will be called the ‘directive-based relationality thesis’. In addition to the directive-based relationality thesis, Goldberg and Zipursky put forward the idea that theorists should also consider the role that courts have in intervening to solve the right-duty dispute. Goldberg and Zipursky aim to show that the law of torts empowers the plaintiff to redress the wrong suffered through civil recourse (p. 13, p. 15, p. 29, pp. 30–37, p. 42, p. 52, p. 72, p. 80, p. 9l, p. 113, p. 115, pp. 163–165). Footnote 7 It is an ‘empowerment’ as the plaintiff instigates the claim and can decide at any moment to abandon it. This additional feature further elucidates the directive-based relationality thesis within tortious relations. Thus, tort law is not a matter of a moral right that has been violated by the defendant’s conduct and the corresponding moral right of remedy. It is a matter of a legal empowerment through a civil recourse conferred on the plaintiff by the law.

In philosophical terms, this theory addresses the question of the normative and justificatory force of tort law as specifically legal and not moral. On the normative and justificatory aspects, it relies on the directive-based relationality thesis; but the normative force of the directive-based relationality thesis emerges as a combination of legal practices and self-understanding of these legal practices (p. 15). There is neither, Goldberg and Zipursky tell us, the need to advance a Kantian framework of political and moral philosophy to give content to the relationality thesis and, consequently, to justify the intervention of the State, nor is there the need to use the Kantian framework to show the immanent formal features that are displayed in the correlation between a duty and a right in tort law. Furthermore, there is no need to resort to an empirical reality, such as vengeance (p. 65 and pp. 121–122), to explain the characteristic normative language used by the courts (p. 6 and p. 12), nor to advance an Archimedean conception of objective morality and moral truths. Goldberg and Zipursky insist, nonetheless, that there is an immanence and an inner normativity of law (pp. 61–62 and pp.190–191), Footnote 8 but that it is always legal in character as provided by the empowerment of the law (p.2, p. 4 and pp. 86–89), and by the fact that it is the courts that elucidate the content of the right and duty.

The Dilemma

My criticism of their rich and complex theory, however, will concentrate on the philosophy of action presupposed by Goldberg and Zipursky, which aims to show that action, or the conduct of the defendant, cannot be severed from the plaintiff’s loss or injury. I will argue that there is a tension between their philosophy of action as applied to the law of negligence and the idea that the directive-based relationality thesis is central and, therefore, the action and conduct of the defendant should not be part of the core explanation of the tort of negligence. I infer that as their arguments refer to all aspects of tort law, they also apply to specific torts, i.e. negligence.

The criticism is formulated in terms of the following dilemma:

If the directive-based relationality thesis is at the centre of the tort of negligence, then a description or explanation of the defendant’s action and conduct should not be part of the core explanation of the tort of negligence. On the other hand, if the sound philosophy of action shows that we cannot sever the defendant’s conduct from the plaintiff’s injury, then the defendant’s action might become part of the core explanation of the law of negligence. Therefore, the directive-based relationality thesis-in terms of the right-duty pair-as emerging legal practices is secondary to an explanation in terms of the defendant’s action. Either it is the case that the defendant’s actions and conduct should not be part of the core explanation of the tort of negligence or, the defendant’s action and conduct is part of the core explanation of the tort of negligence and the directive-based relationality thesis is secondary to the former. Furthermore, the directive-based relationality thesis might be dispensable.

The intuitive puzzling idea that emerges from the dilemma is that within Goldberg and Zipursky’s tort theory the role of a sound theory of action is unclear. If they were to advance a correct explanation of action, then this theory will have normative consequences and provide a grounding for tort law. This would require us to investigate carefully what action is, and what the conditions are for identifying and evaluating action. Furthermore, methodologically speaking, Goldberg and Zipursky’s would be starting from an explanation of action as the ‘core’ explanation, and subsequently the directive-based relationality thesis will be derivative and follow as a normative thesis to the action theory. Instead, they start with the idea that actions cannot be severed from their results or consequences and they introduce this idea as the correct conception of action. There is no explanation of why this is so, no further argumentation or grounding is provided. The methodological route that Goldberg and Zipursky seem to follow is the opposite from the one suggested. Their conception of action derives from the directive-based relationality thesis that they defend. However, we have no reason to believe that this is a sound explanation of action.

If the premises of the dilemma are sound, then Goldberg and Zipursky would need to choose between the following two options: (a) embrace the directive-based relationality thesis, in which case they would need to ignore the argument that defends the view that action and injury or loss are not severed and, consequently, an explanation in terms of action becomes unnecessary and plays no central role in the tort of negligence; or (b) embrace a sound theory of action whereby action and injury or loss are not severed, in which case they would need to ignore the directive-based relationality thesis or at least explain how it is derivative of their sound theory of action as it will play no central role in the explanation and justification of negligence law. Both alternatives seem unpalatable. In the latter case, if they ignore the directive-based relationality thesis, the explanation should be carried out in terms of action, conduct, capacity and probably outcome-responsibility, Footnote 9 partially ignoring or suspending the question of rights and duties. In a weaker version of this option, they would need to show how the directive-based relationality thesis is derivative of or dependant on their sound theory of action. If they embrace the directive-based relationality thesis, they would need to ignore the question concerning action and conduct as non-severable from injury and loss as central or paradigmatic. This is because it would render mysterious the role played by this theory of action in a coherent explanatory and justificatory theory of negligence law; all the explanatory and justificatory work would be done by the directive-based relationality thesis. Inevitably, however, once we ignore or discard the idea that a defendant’s action cannot be severed from the plaintiff’s injury in describing negligent actions, problems related to moral luck and consequentialist puzzles will arise. It will not be clear why our legal and social practices, and self-understanding do not embrace ‘moral luck’ conceptions, consequentialist, or economic analyses of the law of negligence. Furthermore, as a counter-analysis, a more robust formulation of the right/duty pair would need to be provided to rescue the relationality thesis (or at a least a variation of it). Therefore, Goldberg’s and Zipursky’s theory might collapse into Weinrib’s or Ripstein’s corrective justice theory.

First Premise of the Dilemma

I will now explain in detail the two premises of the dilemma.

Premise 1: If the directive-based relationality thesis is at the centre of the tort of negligence, then the defendant’s action and conduct should not be part of the core explanation of the tort of negligence.

In English law, the courts identify a number of key conditions that need to be satisfied for a legal action in negligence to be successful. First, the plaintiff needs to show that the defendant owes a duty of care to the plaintiff. This is determined by two key concepts, foreseeability and proximity. Footnote 10 Second, the plaintiff needs to demonstrate that there has been a breach of the standard of care, which is the standard of a reasonable person in the same position and circumstances as the defendant. Footnote 11 Third, the plaintiff should prove that the defendant’s action caused the injury or loss and, finally, Footnote 12 that the type of damage, i.e. loss or injury, was not too remote. Footnote 13 The analysis in the US legal system differs slightly, as much focus is placed on the notion of risk. One of the factors that needs to be considered when determining whether the defendant has a duty of care to the plaintiff is whether the defendant engaged in the creation of the risk which resulted in the plaintiff’s injury. Footnote 14

However, arguably, in both jurisdictions as in many other common law jurisdictions, the primary element is that there is a duty that the defendant owes to the plaintiff and that the latter has a right not to be injured or suffer a loss. In both the English and US legal systems as in many others, Footnote 15 the standard of care is objective and the law of negligence becomes closer to a scheme of quasi-strict liability (p. 191). It does not matter whether the defendant has subjectively done everything that she or he could have done, i.e. whether they took all the precautions or steps to avoid the harm or loss that in her own assessment were necessary. The defendant will be liable if he or she has fallen below the objective standard of care of the reasonable person engaged in a similar action or activity. This ‘quasi-strict liability’ scheme has been the target of criticism by a number of theorists Footnote 16 who argue that there can be no blameworthy action as there is no knowledge that the defendant should have had, and therefore liability for negligent acts cannot be justified. In other words, the defendant was not in control of her actions as she was unaware or oblivious of what she was doing when she was doing it. Arguably, Goldberg and Zipursky’s theory provides an answer to this sceptical challenge in the following terms. The conduct or action, including how the defendant conceived her action or the knowledge that she had when she was engaged in the negligent action, play no role in the justification and explanation of the law of negligence (pp. 248–249). Footnote 17 Goldberg and Zipursky point out that the correct description that identifies a negligent act is ‘x negligently injured y’ and not ‘x acted carelessly, and y suffered a setback because of x’s careless act’. They assert:

To ground a claim for negligence, the plaintiff’s injury must ordinarily be a realization of the aspects of the defendant’s behavior Footnote 18 that rendered it careless: the plaintiff’s injury must be capable of being cogently described as having an immanent within the defendant’s carelessness . Footnote 19 Negligence, in other words, contains a directive that enjoins careless injuring, not careless conduct itself, nor even harm caused (in any manner) by careless conduct (pp. 248–249).

The legal directive establishes the nexus between the injury and the careless conduct. But the nexus is not in terms of an evaluation of the conduct, but in virtue of the right-duty pair and the directive-based relationality thesis. This is a paradoxical position because the role of the different criteria to evaluate conduct is now unclear, e.g. in English law foreseeability and proximity, and reasonable person as standard of care; in the US, reasonable risk. Because Goldberg and Zipursky do not provide a detailed and justified theory of action through which we could assess conduct or action in general, it is not clear how negligent conduct, philosophically speaking, can be determined and assessed. The philosophical and conceptual implication of phrases in this paragraph such as, “ the plaintiff’s injury must ordinarily be the realization of the aspects of the defendant’s behavior “ or, “ the plaintiff’s injury must be capable of being cogently described as being immanent within the defendant’s carelessness ” are unclear. What do ‘being immanent’ and ‘realization’ mean here? We will try to elucidate this in the next section when we engage with Goldberg and Zipursky’s theory of action and the second premise of the dilemma.

For Goldberg and Zipursky, the core view that explains and justifies the tort of negligence is the directive-relationality thesis, i.e. the plaintiff’s right not to be injured or suffer loss and the defendant’s duties that are elucidated by the courts and are the content of practised-based directives of the law of negligence. The special relationship between the plaintiff and the defendant is also shaped by the empowerment in the form of a civil recourse that is conferred on the plaintiff by the State. According to this view, consequently, the question related to the defendant’s subjective understanding and description of her action, or whether the defendant was a proximate cause of injury or loss suffered by the plaintiff is not at the core of the justificatory and/or explanatory framework of the law of negligence. The knowledge and conduct of the defendant and whether it was foreseeable that the action of the defendant will cause the harm seems irrelevant. The directive-based relationality thesis seems to do all the required work as the right-duty pair define what kind of action is a negligent one.

The Second Premise of the Dilemma

Premise 2: if the sound philosophy of action shows that we cannot sever the defendant’s conduct from the plaintiff’s injury, then the defendant’s action might become part of the core explanation of the law of negligence. Therefore, the directive-based relationality thesis in terms of the right-duty pair is secondary to an explanation in terms of the defendant’s action.

In spite of what has been said in Premise 1, Goldberg and Zipursky engage in an explanation in terms of a theory of action. Their theory of action is a key argument against moral luck views on action and consequentialists theories in tort law. The puzzle of moral luck in contemporary philosophy was first introduced by Bernard Williams and Thomas Nagel, and subsequently applied to tort law by Jeremy Waldron. In reply to Williams’ paper “Moral Luck”, Footnote 20 Nagel Footnote 21 asks whether we are responsible for actions that are beyond our control, e.g. circumstances, opportunities, capacities, temperament, contingencies in the world. According to Nagel, the success or failure of our actions depends on what is happening in the world when we act. Williams calls this ‘moral luck’. The idea of the agent losing control of her actions due to contingencies in the world, including who we are and how we are constituted, undermines any standard notion of responsibility and moral judgement. As Nagel puts it, “the self which acts and is the object of moral judgment is threatened with dissolution by the absorption of its acts and impulses into the class of events”. Footnote 22 But Nagel insists that a moral judgement is not what happens, it is not about a state of affairs, but about an active self. He merely outlines this active self in his piece on moral luck, but provides a clearer idea in The Possibility of Altruism Footnote 23 and The View from Nowhere Footnote 24 . The active self is capable of identifying and distinguishing between what belongs to us, when we engage in choosing and rational deliberation, and what is just a mere happening. Thus, we cannot take a merely external evaluative view of ourselves, and understanding our actions is key to shaping the contours and borders of what we have done, as opposed to what is merely happening in the world. We cannot, Nagel tells us, operate and make ourselves intelligible if we operate as causes in the empirical and contingent world. Contrast Nagel’s position with Williams’ view on the matter. Williams focuses on rebutting the view that we are immune to moral luck and that the agent’s reflective assessment and justification of her own actions are not subject to luck. Footnote 25

The example of the painter Gauguin illustrates Williams’ point. The painter abandons his wife and children to pursue a career in painting. His success as a painter, i.e. giving a unique artistic legacy to the world and defining the way human existence is meaningful, cannot be separated from any justification of his actions. But his success cannot be foreseen by him or anyone at the moment of his actions . If Gauguin fails, he has done the wrong thing; if he succeeds, his actions might be justified. Footnote 26 Of course, this justification is not moral, but it is within a life that adheres to certain values, i.e. a life that is meaningful through aesthetic experience. Williams recognises that this justification is not towards others, i.e. the children will still have grounds for reproach, but the justification will operate retrospectively. Williams’ point is that at the moment of the action , Gauguin cannot act in light of all the relevant rational considerations that apply to him Footnote 27 because much of the justification of his actions will depend on his talents, deliberative capacity Footnote 28 and character, and how he successfully develops these talents. This is what Williams calls ‘intrinsic luck’. Footnote 29 He tells us “the locus of intrinsic luck, largely lie in him -which is not to say, of course, that they depend on his will, though some way ”. Footnote 30 However, he recognises that the locus of intrinsic luck can lie outside the agent. Williams seems to hint to the idea that agency continues once we have performed our actions, when we look back and ponder over the consequences of our actions. Footnote 31 We can see these consequences as part of our actions, in spite of the fact that we may have had no knowledge of the action and did not intend it. According to Williams, we would expect that the lorry driver, who runs over a child by accident, has particular feelings about what happened, and that these feelings cannot be easily eliminated by arguing that what happened was not his fault. The lorry driver recognises that the consequence, i.e. the death of the child, has resulted from his act, i.e. his driving the lorry. Footnote 32 For Williams it would be an insane conception of rationality if we expected people not to feel or own the consequences of their actions, or if we expected them to detach themselves from the unintended aspects of their actions. Footnote 33 However, let us recall that for Williams, this evaluation is not in terms of moral blameworthiness as one cannot make clear judgements of liability and moral blameworthiness. The latter, in principle, requires control, but in cases of non-intentional action there is no control. Footnote 34 He concludes that agency cannot be purified of contingencies in the world and, therefore, any sound account of rationality and responsibility need to consider this impure conception of the self. Furthermore, he wishes to emphasise that our assessment and justification of actions is not exclusively from the moral point of view, where actions and consequences are severed, as Nagel aims to show.

Let us now analyse how these ideas have been examined in tort law. Honoré and Gardner, Footnote 35 inspired by Von Wright’s philosophy of action and norms, Footnote 36 outline an alternative conception that navigates between Nagel’s and Williams’ positions. Gardner, following Honoré’s argument that responsibility in the law of negligence is about outcome-responsibility, establishes a distinction between results and consequences. Thus, results are within the description of the action and therefore are part of what the agent is doing and what we bring to the world as agents. By contrast, consequences are outside the scope of the action, and are merely ‘happenings’. Footnote 37

Waldron Footnote 38 also takes up Williams’ points on moral luck to establish a case for the replacement of negligent liability for a scheme where losses and gains are distributed in terms of adequate models of fairness and justice. Waldron aims to show that the law of negligence is basically unjust as we cannot justify liability in negligence for the alleged harm that the plaintiff has suffered as result of the defendant’s action given that others may have acted in a similar manner, i.e. were equally morally wrong, but were lucky enough not to injure or cause any loss to anyone. His argument is well illustrated with the following example:

Two drivers, named Fate and Fortunate, were on a city street one morning in their automobiles. Both were driving at or near the speed limit, Fortune a little ahead of Fate. As they passed through a shopping district, each took his eyes off the road, turning his head for a moment to look at the bargains advertised in a storefront window. In Fortunate’s case, this momentary distraction passed without event. The road was straight, the traffic in front of him was proceeding smoothly, and after few seconds he returned his eyes to his driving and completed his journey without accident. Fate, however, was not so fortunate. Distracted by the bargain advertised in the shoe store, he failed to notice that the traffic ahead of him had slowed down. His car ploughed into a motorcycle ridden by a Mr. Hurt. Hurt was flung from the motorcycle and gravely injured. His back was broken so badly that he would spend the rest of his life in a wheelchair. Fate stopped immediately to summon help, and when the police arrived he readily admitted that he had been driving carelessly. Footnote 39

Like in Williams’ case of the painter Gauguin, Waldron invites us to reflect on the complexity of action and its connection to blame and responsibility. If world contingencies and happenings are inevitably merged with our actions, then it is difficult to justify from the moral standpoint that we are responsible in negligence, and moral luck seems to pervade our tortious actions. Similarly, if liability in negligence is grounded in our conduct and blameworthy action, then it is difficult to justify that Fate is liable whereas Fortunate is not. The moral viewpoint as defended by Nagel is challenged by this example. Fate and Fortunate conducted themselves in exactly the same way, and there is no justification for both attributing liability to Fate and justifying the transfer via compensation of 5 million US dollars from Fate to Hurt, which bankrupt him. Neither Fate nor Fortunate choose to act in the way they did.

We took a detour in order to understand the context within which Goldberg and Zipursky propose their conception of action. It aims to undermine Waldron’s position and therefore, indirectly, any ‘moral luck’ type of analysis of action and consequentialist position on action theory, including economic analysis of law. But it also aims to put pressure on the moral standpoint of blame and responsibility as advocated by Nagel, for example, where an action is assessed only by virtue of what the active self engages with and, therefore, the self is isolated from results or consequences. They navigate between the Scylla of the moral standpoint and the Charybdis of the ‘moral luck’ position on action and consequentialist analyses. They argue that in tort law, including the law of negligence, the plaintiff’s injury cannot be severed from the defendant’s negligent action. According to Goldberg and Zipursky, Waldron’s description of Fortunate and Fate formulate actions as a sequence of events in the world where contingencies occur. For Waldron, the description of the action that corresponds to Fate’s performance of action would be “the driver was driving the vehicle at high speed, the child jumped in front of the vehicle, the vehicle ran over the child and therefore the driver’s action caused the injury of the child”. By contrast, the description of Fortunate’s action would be “the driver was driving the vehicle at high speed”. Under these two sets of descriptions of negligent action, we cannot understand why Fate is liable while Fortunate is not. They both performed the same actions, but Fate was unlucky due to contingencies of happenings that were beyond her control. By contrast, Fortunate was lucky in terms of happenings. It is unfair to establish liability in negligence on the basis of happenings, especially in negligence, where actions are non-intentional and caused by inadvertence, lack of knowledge or unawareness. It seems that sceptical positions have the upper hand here.

Goldberg and Zipursky aim to show that Waldron’s description of negligent action is mistaken. In tort law and the law of negligence and, arguably, (though they do not put the point according to this exact formulation) from the point of view of the law of negligence and tort law entrenched in legal practices , the correct description of negligent action is as follows: “the speedy driver carelessly ran over a child and this resulted in injury” and this is, according to tort law, what Fate did. By contrast, Fortunate only “drove carelessly at high speed”. Of course, from the point of view of the Road Traffic Act, 1988, both Fortunate and Fate violated the Act and the consequence will be a fine. However, within the perspective of tort law , the duty of non-injury is attached to the description of the act and in the example, only Fate violated the duty of non-injury . It is unclear how Honoré and Gardner’s description of action in terms of results and not consequences sheds further light on, or perhaps complements, Goldberg and Zipursky’s theory of action. I suspect that the key difference is as follows. Goldberg and Zipursky would like to make legal descriptions parasitic on legal concepts and the way these concepts are interpreted and elucidated by the courts. By contrast, Honoré and Gardner’s theory of action might stand independently of interpretative legal practices.

If Goldberg’s and Zipursky’s view on action is sound, then the role of the directive-based relationality thesis is unclear. The justification can be done within this theory of action. The courts would only need to identify the correct description of negligent action, i.e. the plaintiff’s action caused the defendant’s injury.

The Conclusion of the Dilemma

Let us now analyse the conclusion of the dilemma:

Either it is the case that the defendant’s actions and conduct should not be part of the core explanation of the tort of negligence or, the defendant’s action and conduct are part of the core explanation of the tort of negligence, and the directive-based relationality thesis is secondary to the former. Furthermore, the directive-based relationality thesis might be dispensable.

Goldberg and Zipursky need to make up their minds about the role that their theory of action ought to play within the justificatory and explanatory framework of the tort of negligence. If they embrace the directive-based relationality thesis, then the right-duty pair determines and defines the negligent act. A theory of action, therefore, as construed in terms of a description where the injury is part of the act performed by the plaintiff plays no role in the justification and explanation of the tort of negligence. Furthermore, the description of the action is merely a legal description, which is defined by the right-duty pair.

A theory of the right-duty pair will be sufficient to explain key features of the tort of negligence, and the interconnected idea of the civil recourse that is conferred by the State on the plaintiff would remain intact. Goldberg and Zipursky rely on historical and pragmatic arguments to give further flesh to their theory of rights. The so-called conduct theory of rights aims to defend the view that entrenched practices and the interpretations of courts elucidate the content of our rights and duties in tort law and the law of negligence. It is still open to debate whether this conception based on practices is sufficiently normative and robust to ground a theory of rights, which are typically characterised as non-empirical, practical and normative. By contrast, a conduct theory of rights might be contingent on practices, interpretative elucidations and self-understanding, and subject to historical conditions. Footnote 40

Additionally, an objector might raise the issue of the character of action and defend the view that action and injury should be severed. This is precisely Nagel’s point. We cannot look at the performance of our action from the empirical perspective, where contingencies might undermine our self-understanding of what we are responsible for in terms of what we can control. However, contra Nagel, Goldberg and Zipursky do not look at the action from the empirical perspective. They try to show that the action ought to be looked from the law of negligence point of view . However, arguably, the legal point of the tort of negligence does not automatically convert this point of view into a correct normative conception of the law. It is, Nagel would argue, in conflict with our moral practices and moral understanding where blameworthy action plays a key role. Furthermore, if there is to be any meaningful normative language, e.g. duty, breach of a standard, this normative language would need to have some relationship with the moral perspective or moral point of view.

The opposite position, Waldron’s and Williams’ conception of action, puts further pressure on Goldberg and Zipursky’s theory of action. Waldron and Williams would insist that our actions are inevitably merged with contingencies in the world, including our character, temperament, what we can see, know or be aware of at the moment of an action. The law of negligence cannot carve a conceptual space through which action and results are not severed, and at the same time, explicitly ignore the deeper reasons why they should not be severed. They cannot separate the non-severance of action and injury from its deeper rationality . We cannot justify cases like that of Fate as different from cases like Fortunate and it is unclear why this law of negligence or legal point of view should have a privileged position over the ‘moral luck’ view, the empirical and/or moral point of view. What is the character of this special normative perspective given by legal concepts and legal practices through which we make this distinction?

The idea of entrenched legal practices does not seem sufficient to ground the distinction, which by now might seem arbitrary. Goldberg and Zipursky would need to ignore the theory of action as it plays no role in the directive-based relationality thesis, though they will not be, therefore, armed with a theory of action that dismantles the pervasiveness of moral luck in negligent actions. They will indirectly open the path for reducing negligence law to consequentialist or economic conceptions of law.

As shown by the second horn of the dilemma, Goldberg and Zipursky could fully embrace their conception of action as a description of injury necessarily connected to the description of the negligent act that is performed by the defendant. This conception will explain why we are responsible for negligent actions, but as the primary explanatory and justificatory role will be in terms of a philosophy of action, we need to engage with an explanation of proximate causation, capacity, etc. The directive-based relationality thesis would subsequently be derivative or dispensable as all the work will be done by these key concepts. Footnote 41

Goldberg and Zipursky reject the latter argumentative strategy and insist that the directive-based relationality thesis and the idea of civil recourse conferred on the plaintiff are at the core of their explanatory and justificatory theory of tort law and, therefore, also negligence law. They fail, however, to explain the role of their theory of action in tortious actions.

I will now explore a potential response to the challenge of the role of their theory of action for tortious action and, more specifically, negligent action. Goldberg and Zipursky could argue that their theory of action is derivative of the directive-based relationality thesis. The latter and, therefore, the pair right/duty determines and defines what a negligent action is. The pair right/duty is, Goldberg and Zipursky could argue, a scheme of interpretation that gives intelligibility to the unity of bodily movements and injury/loss suffered by the defendant. They could state that the moral standpoint, ‘moral luck’ viewpoint, and economic analysis theorists fail to understand that the scheme of interpretation as providing intelligibility of action ought to be in terms of rights/duties. Goldberg and Zipursky’s underlying argument would therefore be that the directive-based relationality thesis and the concepts of right and duties are the conditions of possibility that enable us to engage with the practice of negligence law. Ideas of right, duty and empowerment through civil recourse are historically entrenched in legal practices and are also currently practised by the courts of different jurisdictions. The right not to be injured and the duty of non-injurious action is a scheme through which we can identify and give content to the driving, and injury and loss caused by the speedy driver. If there is another speedy driver who does not injure anyone, then the scheme of interpretation does not apply to her .

The right-duty pair and, consequently, the directive-based relationality thesis are crucial to our self-understanding and to the practices of courts and legal practitioners of the law of negligence. Furthermore, Goldberg and Zipursky could argue that ‘moral luck’ consequentialists and economic analysis theorists’ notion of action are mainly empirical and fail to have any intelligibility from the point of view of the agent who engages in the action. On the other hand, Nagel’s proposal is merely moral, but not legal. The speedy driver who collides with another vehicle and as a result injures the passengers in that vehicle does not see the injury as severed from his driving.

Arguably, however, Goldberg and Zipursky’s hypothetical response would engage neither with Nagel’s moral standpoint, nor with the ‘moral luck’ or economic analysis viewpoint. ‘Moral luck’ and economic analysis theorists could argue that it is true that the speedy driver does not refuse to appropriate and be responsible for the injuries that he has caused to the plaintiff by his negligent driving. However, speedy driver’s self-understanding is confused and muddled by the fact that another speedy driver was lucky and did not actually cause any injury, even though her conduct was equally negligent. In Waldron’s example Fate will ask why she ought to pay for losses that she caused through actions she was unaware of, when Fortunate, who behaved exactly like her, did not cause any injury and therefore is not liable simply because she was lucky. The fact that Fortunate did not cause injury was merely ‘good’ luck Footnote 42 . This is precisely Williams’s point; it would be insane to advocate a theory of rationality and responsibility that would ask for a purified conception of agency, and that would isolate us either from the contingencies of the world or from a purely normative legal conceptual scheme though it is the result of practices. We can still question it, and the fact that is entrenched in practices does not give any special status or consolation to Fate’s pressing question. Fate needs to understand why her action is truly blameworthy . Judgements of liability against her and not against Fortunate contradict our self-understanding. There ought to be a symmetry between Fortunate’s and Fate’s attributions of liability. Self-understanding can go both ways and might undermine a scheme of interpretation in terms of the right-duty pair onto negligent action.

Goldberg and Zipursky also fail to see the moral standpoint. The moral standpoint resists the idea that descriptions of actions should merge with contingencies of the world which we cannot control. Legal practices show a continuity with moral normativity at the level of the interpretative tasks of the courts. This position is clearly defended by Goldberg and Zipursky. But their theory of action seems to isolate legal normativity from moral normativity. Moral self-understanding can show its ugly head in our legal self-understanding either through the interpretative engagement of the courts or the practices of legal practitioners. Furthermore, the application of a scheme of interpretation of right-duty comes after the specific negligent action has been performed. It does not help to guide us in our actions, when we are engaged in reasons and tracking good-making characteristics as it is a mere scheme of interpretation.

In this paper it has been shown that there is a tension between Goldberg and Zipursky’s theory of action, which defends the view that negligent action and injury should not be severed, and their directive-based relationality thesis. The role of their theory of action is unclear since all the explanatory and justificatory theoretical work is done by the directive-based relationality thesis. I have also tried to demonstrate that either the moral standpoint of action, or the moral luck position on responsibility might appear in our self-understanding of negligent action. Thus, the possibility of a pure law of negligence with its own normative point of view is problematic as courts in their interpretative tasks engage with both the moral standpoint and moral luck analysis to determine liability in the law of negligence. The moral standpoint or a moral luck type of analysis might show the ‘impurity’ of action and undermine the law of negligence normative point of view that justifies liability. We need further explanations to purge the impurities of a moral standpoint or moral luck analysis in our legal assessment of liability in negligence. It seems that a political or moral philosophical position beyond the notion of historically entrenched practices might be necessary.

John C.P Goldberg and Benjamin Zipursky, Recognizing Wrongs (Cambridge, Mass.: Harvard University Press, 2020).

The conduct theory of rights advances the argument that rights and duties are grounded on legal practices. For the idea of legal practices as grounding facts, Goldberg and Zipursky rely on the view defended by H.L.A. Hart in The Concept of Law (Oxford: Clarendon Press, 2nd Edition, 1997) . Thus, legal rules and directives are valid by virtue of facts that obtain independently of whether the rules are morally justifiable. According to Goldberg and Zipursky, the model of rights and duties is a description of our legal practices, e.g. rights and duties figure in the Federal Constitution’s Bill of Rights and in other pieces of legislation, e.g. Vermont’s Fair Credit Reporting statute and, therefore, rights and duties exist “ by virtue of the existence of valid legal directives within a legal system that require some set of persons (including the set of all persons) to treat some set of persons (including the set of all persons) in certain ways, or that enjoin some set of persons from treating some set of persons in certain ways. These relational legal directives or legal norms are conduct rules” (p. 97).

Calabresi, G., The Costs of Accidents (New Haven: Yale University Press, 1970); Coase, R., “The Problem of Social Cost”. In: 4 Journal of Law and Economics (1950), pp. 1–44; Posner, R., “A Theory of Negligence”. In: 1 Journal of Legal Studies (1972), pp. 29–96.

Weinrib, E., The Idea of Private Law (Cambridge, MA: Harvard University Press, 1995); Ripstein, A., Equality, Responsibility and the Law (Cambridge: Cambridge University Press, 2001) and Private Wrongs (Cambridge, MA: Harvard University Press, 2016).

At p. 82, Goldberg and Zipursky refer to the idea of rules as generators of relational wrongs. At pp. 92–98, they explain how relational legal directives give rise to legal rights and duties.

See Weinrib, E., The Idea of Private Law , Chapter 5 and Ripstein, A., Equality, Responsibility and the Law , Chapter 3.

At p. 124, they make a distinction between narrow and wider civil redress. The former refers to the right to redress legal wrongs as in tort law, whereas the latter refers to the private right of action.

Goldberg and Zipursky insist that torts are wrongs, not construed as blameworthy acts, but as violations of the plaintiff’s right not to be injured. They also argue in favour of taking at face value the normative language of law and the fact that there is an inner normativity of law (pp. 211 and pp. 252–253).

See Honoré, T., Responsibility and Fault (Oxford: Hart Publishing, 1999) and Gardner, J., From Personal Life to Private Law (Oxford: Oxford University Press, 2018). See also Perry, S., “The Moral Foundations of Tort Law”. In: 77 Iowa Law Review (1992), pp. 449–514.

Donoghue v Stevenson [1932] AC 562

Blyth v Birmingham Waterworks Company  (1856) 11 Ex Ch 781. For the objective standard of care in professional negligence, see Bolam v Friern Hospital Management [1957] 1 WLR 583 and Bolitho v City and Hackney Health Authority [1998] AC 232.

Barnett v Chelsea and Kensington Hospital Management Committee [1969] 1 QB 428.

Hughes v Lord Advocate [1963] AC 837 (HL).

American Law Institute’s Restatement of the Law of Torts, Third: Liability for Physical and Emotional Harm. For a defence of the normative dimension of risk imposition, see Oberdiek, J., Imposing Risk (Oxford: OUP, 2017).

See Honoré, T, Responsibility and Fault , at p. 17.

Most of the contemporary literature in the field focuses on either sceptical views of negligence, e.g. H. Hurd and M. Moore, ‘Punishing the Awkward, the Stupid, the Weak and the Selfish: The Culpability of Negligence’. In: Criminal Law and Philosophy (2011), pp. 147–198; G. Rosen, ‘Skepticism about moral responsibility’, Philosophical Perspectives (2004), pp. 295–313 and Zimmerman, ‘Moral Responsibility and Ignorance’, Ethics (1997), pp. 410–426; or views that engage in complex and subtle explanations concerning the key components of negligence and the way we need to grasp them, i.e. directly via our expectations of knowledge that people ought to have, or derivatively by tracing the point of knowledge/belief that the actor actually had prior to the negligent action. The standard view is that two or more of these key components offer the ground for responsibility for a negligent action or show that we are unable to demarcate between recklessness and negligence, e.g. Husak, D., ‘Negligence, belief, blame and criminal liability: The special case of forgetting’, Criminal Law and Philosophy (2011), pp. 199–218; Ferzan, K. K, ‘Opaque Recklessness’, Journal of Criminal Law and Criminology (2001), pp. 597–652; Ferzan, K. and Alexander, L, Crime and Culpability (Cambridge: CUP, 2012); Fitzpatrick, W., ‘Moral Responsibility and Normative Ignorance: Answering a New Skeptical Challenge’, Ethics (2008), pp. 589–613; Stark, F. Culpable Carelessness (Cambridge: Cambridge University Press, 2016); Yaffe, G., “Intoxication, Recklessness and Negligence”, Ohio State Journal of Criminal Law (2012), pp. 545–583.

There is a specific conception of ‘wrong’ advocated by Goldberg and Zipursky which is not related to blameworthiness or conduct (pp.187–199). A conduct is ‘wrong’ when it is attributed as such by the courts in their interpretation of the legal material (p. 106 and 182). The argument underlying the view that conduct is irrelevant in negligence is that there is an objective standard of care, which is defined according to what a reasonable person would do in the specific circumstances (p. 104 and p. 107). Assessment of liability is in terms of what the defendant ought to have done, not what they actually do (pp.191–192).

The emphasis is mine.

Williams, B, “Moral Luck”. In: 50 Proceedings of the Aristotelian Society (1976), pp. 115–135. Reprinted in Moral Luck (Cambridge: Cambridge University Press, 1981).

Nagel, T., “Moral Luck”. In: 50 Proceedings of the Aristotelian Society (1976), pp. 137–151.

Ibid., p. 145.

Nagel, T, The Possibility of Altruism (Princeton: Princeton University Press, 1970).

Nagel, T, The View From Nowhere (Oxford: Oxford University Press, 1986).

Williams, B., “Moral Luck”, p. 22.

Ibid., p. 23.

Ibid., p. 24.

Ibid., p. 25.

Ibid., p. 26.

Williams, B., “Moral Luck”, p. 26.

For a way of understanding this retrospective reflection of our own actions, see my chapter “The Backward-Looking Puzzle of Responsibility in Negligence: Some Preliminary Thoughts for Understanding Inadvertent Actions”. In: Agency, Negligence and Responsibility (Cambridge University Press, 2021).

Williams, B., “Moral Luck”, p. 28.

Ibid., p. 29.

See footnote 16 above for references on the sceptical position.

Gardner, J., From Personal Life to Private Law, pp. 58–64.

Von Wright, G.H, Norm and Action (Abingdon: Routledge and Kegan 1963), pp. 39–41.

Gardner uses his conception of action to establish that the duty of care in negligence law is only a duty to try and not a result-requiring duty, From Personal Life to Private Law , at p. 64.

Waldron, J., “Moments of Careless and Massive Loss”. In: Philosophical Foundations of Tort Law , Owen, D.G. (Ed.) (Oxford: Clarendon Press, 1995), pp. 387–408.

Waldron, J., “Moments of Careless and Massive Loss”, p. 387.

This is an aspect that we have no time or space to explore further, but is something lurking in the vicinity that could be problematic.

See Hart, H.L.A., Punishment and Responsibility (New York: Oxford University Press, 1968), pp.149–152 and Raz, J. “Responsibility and the negligence standard”, Oxford Journal of Legal Studies (2010), pp.422–452 and “Being in the world”, Ratio (2010), pp. 422–452, for an explanation based on a theory of action grounded on capacities.

See comments on the infelicitous and ambiguous use of the term ‘moral luck’ by Williams, Gardner, J., From Personal Life to Private Law , p. 61.

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Rodriguez-Blanco, V. The Law of Negligence, Blameworthy Action and the Relationality Thesis: A Dilemma for Goldberg and Zipursky’s Civil Recourse Theory of Tort Law. Law and Philos 41 , 63–82 (2022). https://doi.org/10.1007/s10982-021-09430-w

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Andrew Robertson, On the Function of the Law of Negligence, Oxford Journal of Legal Studies , Volume 33, Issue 1, Spring 2013, Pages 31–57, https://doi.org/10.1093/ojls/gqs034

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This article offers an understanding of the law of negligence which explains its concern with both interpersonal justice and community welfare. It argues that close attention to the structure of the duty of care inquiry and the reasoning in duty cases suggests that the law of negligence has an underlying community welfare purpose, but that purpose is not to be found in notions of deterrence, compensation or the improvement of standards of behaviour. The community welfare purpose underlying the law of negligence must be one that is more directly served by doing interpersonal justice. The best available explanation is that the law of negligence functions to maintain civil peace by providing an avenue of recourse for certain interpersonal wrongs. This analysis explains why the duty inquiry focuses primarily on considerations of interpersonal justice but, like other private law doctrines, also attends to the community welfare effects of imposing liability.

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• Strict Liability and Nuclear Energy: Addressing Legal Consequences of Accidents
• Product Liability and E-commerce: Navigating Legal Responsibilities in Online Marketplaces
• Unfair Competition and Trade Secrets: Legal Challenges in the Age of Globalization
• Economic Torts and Antitrust Law: Analyzing Monopoly and Collusion Allegations
• Tortious Interference with Contractual Relations: Balancing Business Interests and Legal Rights
• Economic Loss Doctrine: Assessing the Scope of Liability in Commercial Disputes
• Business Defamation and Reputation Management: Legal Strategies for Corporations
• Economic Torts in Intellectual Property Disputes: Copyright Infringement and Trademark Dilution
• Tortious Misrepresentation and Securities Fraud: Unraveling Legal Complexities in Financial Markets
• Business Torts and Cybersecurity Breaches: Legal Remedies for Data Breach Incidents
• Economic Torts and Unjust Enrichment: Analyzing Claims of Profits and Restitution
• Tortious Interference with Prospective Economic Advantage: Navigating Claims of Economic Harm
• Medical Negligence and Informed Consent: Balancing Patient Autonomy and Medical Best Practices
• Healthcare Liability Insurance: Evaluating Legal Protections for Medical Professionals
• Medical Malpractice and Birth Injuries: Legal Perspectives on Obstetric Care
• Telemedicine and Medical Malpractice: Legal Challenges in Remote Healthcare Delivery
• Medical Error Reporting and Legal Immunity: Analyzing the Impact on Patient Safety
• Medical Malpractice and Electronic Health Records: Addressing Legal Implications
• Physician-Patient Confidentiality: Examining Legal Obligations and Ethical Considerations
• Medical Malpractice and Malpractice Insurance: Navigating Liability Coverage and Costs
• Medical Negligence in Surgical Procedures: Analyzing Legal Standards and Accountability
• Medical Malpractice and Nursing Care
• Toxic Torts and Environmental Justice: Legal Remedies for Polluted Communities
• Environmental Torts and Climate Change: Addressing Liability in Global Warming Cases
• Strict Liability in Environmental Disasters: Analyzing Legal Accountability in Spills and Accidents
• Environmental Torts and Corporate Responsibility: Evaluating Environmental Impact Assessments
• Tort Law and Wildlife Protection: Legal Strategies to Preserve Biodiversity
• Environmental Torts and Natural Resource Damages: Assessing Compensation for Ecological Harm
• Strict Liability for Hazardous Waste: Legal Implications in Waste Management Practices
• Environmental Torts and Government Liability: Holding Public Entities Accountable for Environmental Harm
• Tortious Nuisance and Environmental Contamination: Analyzing Claims of Property Damage
• Environmental Torts and Private Enforcement: Examining Citizen Suits and Environmental Litigation
• Tort Liability in Autonomous Vehicles: Legal Challenges in Self-Driving Car Accidents
• Cyber Torts and Data Privacy: Navigating Legal Issues in Data Breach Incidents
• Tort Law and Social Media: Legal Implications in Online Defamation and Cyberbullying
• Tortious Interference in E-Commerce: Addressing Claims of Business Disruption
• Digital Torts and Online Misinformation: Legal Strategies to Combat Fake News
• Tort Law and Artificial Intelligence: Evaluating Liability in AI Decision-Making Processes
• Cybersecurity Torts and Ransomware Attacks: Analyzing Legal Protections for Cyber Victims
• Tort Law and Internet Service Providers: Legal Responsibility for Third-Party Content
• Data Tort and Commercial Surveillance: Balancing Consumer Rights and Business Interests
• Tortious Acts in Virtual Environments: Legal Perspectives on Virtual Reality Incidents
• Tort Law in Common Law Systems: A Comparative Analysis of Anglo-American Approaches
• Civil Law Torts in Continental Europe: Analyzing Legal Traditions in Tort Liability
• Asian Perspectives on Tort Law: Cultural Influences on Legal Remedies and Compensation
• Tortious Liability in Islamic Law: Evaluating Concepts of Harm and Reparation
• African Approaches to Tort Law: Legal Pluralism and Remedies for Civil Wrongs
• Tort Law in Latin America: Balancing Individual Rights and Societal Interests
• Tortious Acts in Indigenous Legal Systems: Legal Pluralism and Cultural Justice
• Comparative Tort Law and Globalization: Harmonization of Tort Principles
• The Role of International Tort Law: Analyzing Cross-Border Tortious Claims
• Human Rights and Tort Liability: Exploring Intersections of Civil Wrongs and Human Dignity
• Tort Reform and Access to Justice: Implications for Vulnerable Populations
• Tort Law and Discrimination: Addressing Legal Claims of Prejudice and Bias
• Tort Law and Environmental Racism: Analyzing Disparities in Environmental Harm
• Tortious Acts and Indigenous Communities: Recognizing Rights to Cultural Integrity
• Tort Law and Gender-Based Violence: Legal Strategies to Combat Harassment and Assault
• Tort Law and Workers’ Rights: Legal Protections for Workplace Injuries and Health Hazards
• Social Justice and Mass Tort Litigation: Analyzing Class Actions and Collective Redress
• Tort Law and LGBTQ+ Rights: Addressing Legal Claims of Discrimination and Harm
• Tortious Acts and Disability Rights: Navigating Legal Obligations for Inclusive Society
• Tort Law and Economic Inequality: Exploring Legal Responses to Socioeconomic Harm
• Punitive Damages and Deterrence: Legal Rationale and Policy Considerations
• Tortious Acts and Legal Ethics: Examining Attorney Liability for Malpractice
• Economic Analysis of Tort Law: Efficiency vs. Fairness in Compensation Models
• Tort Law and Judicial Activism: Balancing Judicial Discretion and Legislative Intent
• Social Welfare and Tort Law: The Role of Compensation in Restoring Social Balance
• Tortious Acts and Insurance Coverage: Analyzing Legal Implications for Insurers
• Tort Law and Risk Management: Strategies for Mitigating Liability Exposure
• Tort Reform and Civil Justice: Evaluating Policy Impacts on Litigation Patterns
• Tort Law and Alternative Dispute Resolution: Mediation and Arbitration in Tort Cases
• Collective Redress Mechanisms: Class Actions and Mass Torts in Tort Law

In conclusion, tort law encompasses a vast array of legal principles and case scenarios that demand careful analysis and thoughtful consideration. This comprehensive list of 100 research paper topics offers students an opportunity to explore the intricate world of tort law, where personal rights intersect with legal duties and responsibilities. As aspiring legal scholars, delving into these topics can foster a deeper understanding of the complexities of tort law, as well as inspire innovative research and critical analysis. By investigating these themes, students can contribute to the ongoing development of tort law, ensuring that justice and accountability remain at the forefront of this essential branch of civil law.

Exploring the Range of Research Paper Topics in Tort Law

Tort law, a foundational pillar of civil law, represents the realm where personal rights and legal duties intersect, offering a labyrinth of legal principles and case scenarios that significantly impact individuals, businesses, and society at large. As students of law embark on their journey into the world of tort law research, they unlock the doors to a captivating realm where civil wrongs and legal remedies intertwine. This article serves as a comprehensive guide to explore the diverse range of research paper topics in tort law, providing students with a unique opportunity to delve into critical issues, landmark cases, and emerging challenges within this captivating branch of law.

The Essence of Tort Law

Tort law is a legal domain that governs the obligations and liabilities arising from civil wrongs and injuries caused by one party to another. This section provides an in-depth understanding of the essence of tort law, explaining its historical context, underlying principles, and key distinctions between torts and other branches of law. By exploring the origins of tort law and its evolution over time, students gain a profound appreciation for its role in protecting personal rights, promoting accountability, and maintaining social order.

Negligence and the Standard of Care

One of the most prominent facets of tort law is negligence, wherein individuals are held responsible for their actions or omissions that lead to harm. This section delves into the intricacies of negligence law, discussing landmark cases and the evolving standards of care. From the historic Bolam test to the modern Montgomery ruling, students explore the journey of negligence law and its impact on the duty of care in various scenarios.

Intentional Torts and Civil Wrongs

Within the framework of tort law lies a spectrum of intentional torts, where harm is deliberately inflicted on another individual. This section examines torts such as battery, assault, defamation, and false imprisonment, offering insights into the legal elements required to prove such civil wrongs. Additionally, students explore how intent plays a pivotal role in distinguishing intentional torts from negligence claims.

Strict Liability and Product Liability

Strict liability represents a unique aspect of tort law, where liability is imposed regardless of fault or intent. In this section, students navigate the realm of strict liability, analyzing ultrahazardous activities and the implications of non-negligent liability. The focus then shifts to product liability, exploring the legal ramifications of defective products and the responsibilities of manufacturers in ensuring consumer safety.

Tort Law and Public Policy

Tort law is not devoid of social, economic, and political implications. This section investigates the intersection of tort law and public policy, delving into the consequences of tort reform, the role of punitive damages, and the impact of tort litigation on businesses and society. Students explore how public policy considerations influence tort law, shaping its landscape and ensuring a balance between individual rights and societal interests.

Tort Law in an International Context

As the world becomes increasingly interconnected, tort law faces unique challenges in a globalized setting. This section examines the international implications of tort law, discussing the application of torts across borders, foreign sovereign immunity, and the complexities of transnational tort claims. Students explore the harmonization efforts within international tort law, understanding the diverse legal approaches in different jurisdictions.

As students immerse themselves in the vast expanse of tort law research paper topics, they discover the richness and complexity of this essential branch of law. From negligence and intentional torts to strict liability and international dimensions, the topics offer a stimulating platform for critical analysis and scholarly exploration. By engaging in the study of tort law, students not only contribute to the advancement of legal principles but also embrace the profound significance of accountability and justice in safeguarding individual rights and societal welfare. The ever-evolving world of tort law presents boundless opportunities for research and academic growth, empowering the legal scholars of tomorrow to shape the future of this crucial branch of the legal system.

How to Choose Tort Law Research Paper Topics

Choosing a compelling and relevant research paper topic is the crucial first step towards producing a well-structured and insightful paper on tort law. With a multitude of intriguing subjects to explore, selecting the right research topic can be both exciting and challenging. This section provides students with a comprehensive guide on how to choose tort law research paper topics that not only captivate the audience but also offer substantial opportunities for in-depth analysis and critical examination.

• Explore Your Interests : The key to selecting an engaging research paper topic in tort law is to identify areas that pique your curiosity. Start by reflecting on your interests within tort law, whether it’s negligence, product liability, or international dimensions. Passion for the subject will drive your research and motivate you throughout the writing process.
• Identify Current Issues and Emerging Trends : Tort law is continuously evolving to address contemporary challenges and advancements in various industries. Stay up-to-date with recent court rulings, legislative changes, and emerging trends within tort law. Topics related to cutting-edge issues often stand out and can make a significant contribution to the existing body of legal knowledge.
• Analyze Landmark Cases : Landmark cases in tort law have shaped legal principles and set significant precedents. Analyzing such cases can provide valuable insights into the complexities of tort law and offer a basis for further exploration. Consider topics that focus on the implications of landmark cases on legal doctrines and societal impact.
• Consult with Your Professor or Advisor : Discussing potential research paper topics with your professor or advisor can provide valuable guidance and feedback. They can help you narrow down your choices, refine your research question, and suggest additional resources for your study.
• Consider Practical Relevance : Tort law plays a pivotal role in various professional fields, including healthcare, business, and technology. Research topics with practical relevance to real-world scenarios can have a profound impact on industries and society. Consider themes that align with your career aspirations or fields of interest.
• Balance Breadth and Depth : Strike a balance between broad research topics and more focused inquiries. While a broad topic allows for a comprehensive study of tort law principles, a narrower focus can offer an in-depth analysis of specific legal issues or court rulings.
• Analyze the Availability of Resources : Ensure that sufficient resources, including academic journals, books, and case studies, are available on your chosen topic. Access to ample resources will facilitate thorough research and substantiate your arguments.
• Embrace Controversial Topics : Tort law often involves contentious issues and differing perspectives. Embracing controversial topics can enable you to engage in critical debates and offer a well-rounded view of the subject matter.
• Consider Comparative Analysis : Tort law varies across jurisdictions, and a comparative analysis of different legal systems can be enlightening. Choose topics that explore the similarities and differences in tort law principles and their implications on global justice.
• Review Sample Research Paper Topics : Reviewing sample research paper topics in tort law can inspire new ideas and help refine your focus. Look for well-written papers that align with your interests and examine their methodologies to better understand how to structure your research.

Selecting a captivating and suitable research paper topic in tort law requires careful consideration of personal interests, current issues, landmark cases, and practical relevance. A well-chosen topic not only stimulates your intellectual curiosity but also enables you to contribute meaningfully to the field of tort law. With a clear research question in mind, embark on your academic journey with enthusiasm, knowing that your exploration of tort law research topics will shed light on critical legal principles and contribute to the ever-evolving landscape of civil justice.

How to Write a Tort Law Research Paper

Writing a well-structured and insightful tort law research paper requires a systematic approach and adherence to certain guidelines. This section provides a step-by-step guide to help students navigate the process of crafting a compelling research paper on tort law. From formulating a strong thesis statement to effectively organizing the content, here are essential tips to enhance the quality of your work:

• Formulate a Clear Thesis Statement : The thesis statement is the foundation of your research paper. It should clearly state the main argument or purpose of your study. In tort law, your thesis statement might address a legal issue, propose a solution, or analyze the implications of a specific court ruling. Ensure that your thesis is concise, focused, and reflective of your research objectives.
• Conduct Thorough Research : Comprehensive research is fundamental to producing a high-quality tort law research paper. Utilize a variety of reputable sources, including legal journals, academic books, case studies, and legislative documents. Ensure that you cite authoritative and up-to-date references to strengthen the credibility of your arguments.
• Organize Your Paper : A well-organized research paper allows readers to follow your arguments logically. Divide your paper into distinct sections, including an introduction, literature review, methodology (if applicable), main body, and conclusion. Each section should flow smoothly into the next, creating a cohesive narrative.
• Introduce the Topic Clearly : In the introduction, provide essential background information on the topic, and clearly state your thesis statement. Engage your readers with a compelling opening that highlights the significance of your research. Briefly outline the structure of your paper to guide readers through the content.
• Conduct a Thorough Literature Review : The literature review demonstrates your familiarity with existing scholarship on the chosen topic. Analyze and synthesize the work of other scholars to establish the context for your research. Identify gaps in the current literature, which can serve as opportunities to contribute original insights to the field.
• Choose the Right Research Methodology : Depending on your research question, consider employing qualitative, quantitative, or mixed-method approaches. Qualitative methods, such as case studies or interviews, can provide in-depth insights into specific legal issues. Quantitative methods involve data analysis and statistical examination, while mixed-method approaches combine both.
• Analyze Case Law and Legal Precedents : Tort law research often involves analyzing case law and legal precedents. Use relevant court rulings to support your arguments and demonstrate the application of legal principles. Analyze how previous cases have influenced the development of tort law doctrines.
• Present Clear and Cohesive Arguments : Each section of your research paper should present clear and cohesive arguments that support your thesis statement. Use logical reasoning and provide evidence from reputable sources to back up your claims. Avoid generalizations and ensure that your arguments are well-reasoned and persuasive.
• Acknowledge Counterarguments : Address potential counterarguments to your thesis statement and explain why your position is more compelling. Acknowledging opposing viewpoints demonstrates critical thinking and strengthens the validity of your arguments.
• Conclude Effectively : In the conclusion, restate your thesis and summarize the key findings of your research. Emphasize the significance of your work and its contribution to the field of tort law. Avoid introducing new information in the conclusion and leave readers with a thought-provoking ending.

Remember to proofread and edit your research paper thoroughly to eliminate any grammatical errors or inconsistencies. Seek feedback from peers or professors to gain valuable insights and improve the overall quality of your paper. By following these guidelines, you can confidently produce a well-crafted and impactful tort law research paper that showcases your understanding of legal principles and analytical skills.

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3L Annabelle Lincoln Presents Pioneering Paper at SportsLand Summit

Third-year law student Annabelle Lincoln recently presented her research at the inaugural SportsLand Summit, held at the Cleveland Browns Stadium. The summit gathered prominent figures in sports, healthcare, technology and human performance.

Lincoln's presentation focused on a research paper she co-authored with fellow CWRU Law students Nathaniel Arnholt and Trey Quillin. The research began in the fall of 2023, with the students exploring varying sports law topics. Ultimately, Lincoln, Arnholt and Quillin were encouraged to further explore their research in the spring semester, culminating in a research paper that was finalized over the summer. 

Their paper explores the critical issue of collegiate athletes’ control over their personal data within college athletics. With rapid advancements in wearable technology, the ability to collect vast amounts of data on athletes both on and off the field has grown exponentially. This data is increasingly valuable to organizations, raising important questions about ownership of that information. 

The legal frameworks governing athlete data rights are complex and vary depending on the athlete's status—whether professional, collegiate or amateur. While the research of Lincoln and her team primarily focused on collegiate athletes, they believe their findings may have broader implications for athletes at all levels. Those interested in the topic can find the full paper on the CWRU Law Athlete Data Lab website .

Reflecting on her experience, Lincoln expressed her gratitude for the opportunity to speak at such a prestigious event, which featured influential leaders such as David Jenkins, COO of the Cleveland Browns, and the CEO of the Rock Entertainment Group, Nic Barlage, along with top team physicians and HealthTech experts. She also thanked Sports Data Labs founders Stan Mimoto and Mark Gorski, and commended Professor Craig Nard for his guidance throughout her research journey.

Lincoln concluded by emphasizing the importance of their research, stating, "Nathan, Trey and I researched this topic extensively and hope our paper will be helpful to players and industry leaders moving forward."  

Tort of Medical Negligence in India

20 Pages Posted: 8 Jun 2020

Shivansh Shukla

NALSAR University of Law

Date Written: June 7, 2020

Indians, of late, have risen to the challenge of healthcare and increased their efforts to provide healthcare facilities to their underprivileged compatriots. This is primarily being done through NGOs and other organizations many of which are funded by the Government. One of the most popular ways to do so have been establishment of health centres which provide the poor with free of cost health services. As we know, instances of malpractice and negligence, unfortunately, have penetrated into every known field and medical field is no exception to this. The usual legal cases of medical negligence are usually covered under the Consumer Protection Act, 1986 but not the cases of negligence and malpractice in the above mentioned health camps because the poor beneficiaries don’t qualify as “consumers” since they haven’t paid any sort of consideration for the services they availed. This research paper seeks to bring to light the role of NGOs and social activists as primary and secondary health care providers in India, unearth their underlying issues but at the same time, lends a special eye to the instances of medical negligence in their camps. The paper in its quest to do so, tries to answer few questions like whether those poor people have any remedy and if yes, then how can they avail it? And whether there is need for procedural guidelines and policy considerations to safeguard the rights of poor and save them from the vicious legal cycle of this country?

Keywords: Medical Negligence, Malpractice, Tort, India, Healthcare systems

JEL Classification: K13, I14, I18

Suggested Citation: Suggested Citation

Shivansh Shukla (Contact Author)

Nalsar university of law ( email ), do you have a job opening that you would like to promote on ssrn, paper statistics, related ejournals, torts & product liability law ejournal.

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