Book contents
- Frontmatter
- Contents
- Contributors
- Introduction
- Part I Birth and Death
- Part II The Limits of Civil Rights
- Part III Dimensions of Violence
- Part IV Beyond Compensation: Public Features of Private Litigation
- 7 Tort Litigation for the Public's Health
- 8 Punitive Damages and the Public Health Agenda
- Index
- References
7 - Tort Litigation for the Public's Health
Published online by Cambridge University Press: 06 December 2010
Edited by
Book contents
- Frontmatter
- Contents
- Contributors
- Introduction
- Part I Birth and Death
- Part II The Limits of Civil Rights
- Part III Dimensions of Violence
- Part IV Beyond Compensation: Public Features of Private Litigation
- 7 Tort Litigation for the Public's Health
- 8 Punitive Damages and the Public Health Agenda
- Index
- References
Summary
INTRODUCTION
The principal objective of public health is to promote and protect the health of populations. The focus is on the common good of society rather than individual health or welfare. Public health law is the infrastructure by which government can compel, prohibit, track, regulate, incentivize, or otherwise seek to ensure that the health of the population as a whole is optimized. There is an inevitable tension in public health law between the common good and the rights and desires of individuals. Quarantine laws, for example, prevent the spread of infectious diseases and protect the health of society by severely restricting an infected individual's freedom of movement. That “victim” whose rights are infringed generally does not receive individual compensation for the intrusion in his rights. He, in effect, “takes a hit for the team.”
The focus of tort law, by contrast, is resolving private disputes between one or more individuals in society by awarding compensatory damages. A tort begins with an injury, or harm, and the question in every case is whether the injured victim should bear the loss oneself, or whether another person, typically the person who brought about the harm, should bear the loss. Tort law offers a set of rules, approaches, and rationales by which government – specifically courts – can require one person to pay a sum of money to another person, with the award representing the value of the injury.
- Type
- Chapter
- Information
- Reconsidering Law and Policy DebatesA Public Health Perspective, pp. 187 - 220Publisher: Cambridge University PressPrint publication year: 2010
References
et al., Role of Litigation in Preventing Product-Related Injuries, 25 Epidemiologic Reviews: Injury Prevention and Contro90, 92–96 (Stephen B. Thacker & Ellen J. MacKenzie eds. 2003)CrossRefGoogle ScholarPubMed
, From Justice to Global Peace: A (Brief) Genealogy of the Class Action Crisis, 39, Loy. L.A. L. Rev. 719 (2006)Google Scholar
, When All Else Fails: Regulating Risky Products Through Tort Litigation, 95 Geo. L.J. 693, 714–20 (2007)Google Scholar
, Reporting From the Front Line – One Mediator's Experience With Mass Torts, 31 Loy. L.A. L. Rev. 359 (1998)Google Scholar
, Jr., Class Wars: The Dilemma of the Mass Tort Class Action, 95 Colum. L. Rev. 1343, 1358–67 (1995)CrossRefGoogle Scholar
, Obstacles to Determining Punitive Damages in Class Actions, 36 Wake Forest L. Rev. 889, 902–12 (2001)Google Scholar
, “Public-Private” Health Law: Multiple Directions in Public Health, 10 J. Health Care L. & Pol'y89 89 (2007)Google Scholar
, In Defense of the “Old” Public Health, 69 Brook. L. Rev. 1421, 1428 (2004) (quoting same maxim as having “powerful roots in the American political tradition”)Google Scholar
, Public Health and the Police Power, 4 N.Y.U. L. Rev. 126 (1927) (suggesting that government is “organized for the express purpose, among others, of conserving the public health”);)Google Scholar
, Community: The Neglected Tradition of Public Health, The Hastings Center Report (Dec. 1985), at 30 (“Our root ideas about health and safety policy can be traced to these early state [police power] policies.”)Google ScholarPubMed
, The Social Transformation of American Medicine189–90 (1982)
, The Origins and Development of Public Health in the United States, reprinted in Gostin, supra note 1, at 27, 28 (from Oxford Textbook of Public Health, vol. 1 (3d ed. 1997))Google Scholar
, Health Care and the Constitution: Public Health and the Role of the State in the Framing Era, 20 Hastings Const. L.Q. 267, 290 (1993)Google Scholar
, The Indivisibility of Public Health: Population-Level Measures in Politics of Market Individualism, 87 Am. J. of Pub. Health1607, 1608 (1997)CrossRefGoogle Scholar
, Jr., The Concept of Health and the Right to Health Care, 3 Soc. Though5, 5 (Summer 1977)CrossRefGoogle ScholarPubMed
, On Personal Responsibility and the Human Right to Health Care, 14 Cambridge Q. of Healthcare Ethics, 224, 224 (2005)CrossRefGoogle Scholar
, Security and Welfare, reprinted in Gostin, supra note 1, at 69, 75 (from spheres of justice: a defense of pluralism and equality (1983))Google Scholar
, Who Pays? Who Benefits? Distributional Issues in Health Care, 60 Law & Contemp. Probs.245, 252 (2006)Google Scholar
& , Vaccination Mandates: The Public Health Imperative and Individual Rights, inLaw in Public Health Practice262–63 (Richard A. Goodman et al. eds., 2003) (describing Hardin's essay)Google Scholar
, The Second Treatise of Government 8–10 ( ed., 3d ed. reprint, Basil Blackwell, 1976) (1690)Google Scholar
& , A Policy for Clean Indoor Air in Missouri: History and Lessons Learned, 13 St. Louis U. Pub. L. Rev. 749 (1994)Google Scholar
et al., Preemption of Local Smoke-Free Air Ordinances: The Implications of Judicial Opinions for Meeting National Health Objectives, 36 J.L. Med. & Ethics403, 403 (2008)CrossRefGoogle ScholarPubMed
, The Minnesota Mandatory Seat Belt Law: No Right to be Reckless? 10 Hamline L. Rev. 229, 229 (1987)Google Scholar
, Constitutional Law: Seatbelt Laws and the Right to Privacy, 10 Harv. J.L. & Pub. Pol'y752, 757 (1987)Google Scholar
, Motorcycle Helmets and the Constitutionality of Self-Protective Legislation, 30 Ohio St. L.J. 355, (1969)Google Scholar
, Freedom to be Foolish? L.B. 496: The Mandatory Seatbelt Law, 19 Creighton L. Rev. 743, 743 (1986)Google Scholar
, Medical Malpractice Litigation and Tort Reform: It's the Incentives, Stupid, 59 Vand. L. Rev. 1085, 1086 (2006)Google Scholar
& , The New Public Health Litigation, 21 Annual Rev. Public Health437, 449 (2000)CrossRefGoogle ScholarPubMed
, The Kindness of Strangers: Interdisciplinary Foundations of a Duty to Act, 40 Washburn L.J. 463, 466–67 (2001)Google Scholar
, The Moral Bases for Public Health Interventions, Epidemiology, vol. 6, no. 1, Jan. 1995, at 78, 80CrossRefGoogle ScholarPubMed
, Punitive Damage Class Action and the Baseline of Torts, 36 Wake Forest L. Rev. 943, 949 (2001)Google Scholar
& , Poetic Justice: Punitive Damages and Legal Pluralism, 42 Am. U. L. Rev. 1393, 1437–38 (1993)Google Scholar
et al., Is there a Role for Benefit-Cost Analysis in Environmental, Health, and Safety Regulation?, Science, vol. 272, April 12, 1996, at 221, 221CrossRefGoogle Scholar
, Probabilistic Recoveries, Restitution, and Recurring Wrongs, 19 J. Legal Stud. 691, (1990)CrossRefGoogle Scholar
, Can Efficiency in Health Care Be Left to the Market? 26 J. Health Pol., Policy & Law967, 970 (2001)CrossRefGoogle Scholar
, Teaching Torts: The Moral Perversity of the Hand Calculus, 45 St. Louis L.J. 759, 7690–61 (2001)Google Scholar
et al., Law and the American Health Care System862–63 (1997) (describing Helling as “[t]he most famous (and largely unique) recent health law case purporting to overrule a professional standard” by relying on The T.J. Hooper, 60 F.2d 737, (2d Cir. 1932))
& , Cost-Effectiveness Analysis in the Courts: Recent Trends and Future Prospects, 26 J. Health Pol. Pol'y & L. 291, 303 (2001)CrossRefGoogle ScholarPubMed
, The Unreasonably Unsafe Product and Strict Liability, 72 Tenn. L. Rev. 833, 838 (2005)Google Scholar