Patient Protection and Decision Aid Quality: Regulatory and Tort Law Approaches

This Article considers a new development in medical practice-the use of medical decision-support tools-and positions it within one of the most enduring debates at the intersection of administrative law and tort law. The Article identifies key factors that policy-makers in medical, environmental, and other contexts use to decide between regulatory and tort approaches to public protection, and argues that ex ante regulation may be insufficient to guarantee the quality of decision-support tools in the absence of a complementary tort remedy. The Article concludes by identifying the steps that would need to be taken to establish a system of ex post tort liability for creators of faulty decision aids and explaining the challenges associated with such a move. Sciences and was funded in part by a summer research grant from Loyola University Chicago School of Law and an alumni development award from the University of Pennsylvania Law School. My sincere thanks to all my colleagues at Loyola and elsewhere for their valuable feedback; Liz Glazer for her mentoring; and students Betsy Ballek,