ENTERPRISE MEDICAL LIABILITY AND THE EVOLUTION OF THE AMERICAN HEALTH-CARE SYSTEM

The recent national debate about health care reform has again focused public attention on malpractice litigation. One malpractice reform proposal that has gained prominence in the 1990s is enterprise medical liability. Under this approach the focus of malpractice litigation would be shifted from individual physicians to the health care organizations under whose auspices patients are treated. In this Article, Professors Abraham and Weiler, who originally developed this policy proposal in the late 1980s, analyze how such a change should be made in medical liability law. The authors first chronicle how, beginning in the 1960s, courts gradually developed a measure of hospital liability for physician negligence, at the same time as other changes in the health care system were motivating hospitals to exercise greater control over both the quantity and quality of medical services that physicians provided to patients. The authors then show why completion of this evolution, by making hospitals liable for all malpractice by their affiliated physicians, would better serve the goals of tort law than does the current individual liability regime. The authors also explain why imposing liability on enterprises such as hospitals engaged in the delivery of patient care is preferable to imposing liability on health plans that finance patient care. After detailing how enterprise medical liability could be introduced on an elective basis, Professors Abraham and Weiler conclude by explaining why this shift in the target of malpractice litigation might serve as a step on the way to a fundamentally different, no-fault medical liability regime.