Weisbard, Alan, Medical Innovation and Bad Outcomes: Legal, Social and Ethical Responses. Responding to Biomedical Innovations: A Beginning Synthesis and Modest Proposal. . Ann Arbor, MI: Health Administration Press, 1987. pgs. 251-276
Abstract
How are we as a society to respond to the injuries that inevitably accompany our quest for medical progress? Economists, lawyers, and public policy analysts are too often prone to see such questions as inviting a purely technical inquiry, to be solved by recourse to allegedly value-free economic theory or legal precedent. One of this book's signal contributions is to suggest an alternative form of analysis, drawing on history and philosophy, cultural analysis and sociology of professions, the history and philosophy of science and medicine, and the careful analysis of politics and political institutions, to improve our understanding of the social meaning and significance of medical innovations and the injuries that trail in their wake. The question, 'indeed, the challenge,' is whether we can employ the fruits of this multidisciplinary inquiry to develop a better informed and more sensible public policy to govern medical innovation and the treatment of its victims. I am not convinced that the programmatic recommendations for law and policy advanced earlier in this book have sufficiently risen to this challenge. The dominant motifs of several of the contributions, particularly those in the law and economics tradition, are such fixtures of conventional policy analysis as economic efficiency and minimization of administrative costs and burdens. There is no apparent willingness to entertain the possibility that injuries associated with medical innovations are somehow special and demand a rethinking of society's obligations to those injured. The perspective seems to differ little from that of the English court which announced in 1798 that "it is better that an individual should sustain an injury than that the public should suffer an inconvenience." This chapter proceeds from quite different premises. Taking seriously the contributions of the humanists, it attempts a beginning synthesis of the social meaning of injuries associated with medical innovation and explores the implications of that synthesis for the formulation of public policy. The analysis challenges the social values implicit in certain conventional legal and economic thinking, particularly that associated with the law and economics school of thought. The essay concludes by proposing an alternative non-fault framework for compensation for medical injuries. While only the outline of this approach can be offered here, the proposal is set forth in the hope of stimulating further debate on how social and philosophical analysis can contribute to better law and public policy.
