This chapter covers the medical malpractice system: how it works, what its goals are, and how it influences provider behavior. The chapter begins by defining key terminology in tort law and explaining the process by which a medical malpractice case is brought and resolved, as well as the goals that this system is trying to achieve. Then discussion turns to how this system creates incentive for actions that run counter to its goals and the problems that are likely to arise, along with some empirical evidence of the existence of said problems.

Direct-to-consumer (DTC) genetic testing has raised questions about the accuracy of the test results, which may raise potential novel liability issues. This chapter examines potential liability exposures relating to DTC genetic testing in two main contexts. The first is potential liability for the DTC provider itself for erroneous results. Key issues in such cases will be the validity and effect of the representations and disclosures that the DTC company provides, which often informs the consumer that the results should not be relied on for medical care, disclaim any liability for any harms that may result from such reliance, and require any disputes to be resolved by mandatary arbitration. The second potential type of case is against health care providers who are presented with DTC results by their patients. Providers will often be put in a “damned if they do, damned if they don’t” predicament by such results, as both ignoring or relying on the DTC test results could create potential liabilities in certain situations. While providers can usually protect themselves by requiring validation of the DTC results by an independent laboratory, time and economic constraints may make this infeasible in some cases.

In Broadnax v. Gonzalez the court overruled precedent that denied pregnant women tort recovery when negligent prenatal care caused miscarriage or stillbirth. The decision held that doctors owe a direct duty of care to the pregnant patient that permits her to recover for the emotional harm from pregnancy loss. The rewritten feminist opinion comes to the same conclusion, but more thoroughly critiques the prior cases as treating women as separate from their fetuses, virtual bystanders to their own bodies. It also concludes that miscarriage or stillbirth harms women physically, not just emotionally, and that tort law should treat these cases like any other medical malpractice case. The accompanying commentary explores the conflicting ways courts have categorized women’s harm to limit recovery for prenatal malpractice, and argues that greater attention to women’s experience of pregnancy complications and harm loss would improve both medical outcomes and the gender equity of tort law.