“Regulation by litigation” is a recently recognized trend in American legal governance that develops differently in each economic sector it affects. In health care, widespread litigation can be viewed as the product of three partial transformations: incomplete industrialization, incomplete consumerism, and incomplete social solidarity. One can argue that the public turns to the courts because other actors who might exercise judgment and authority to resolve problems appear unreliable. Because litigation has several features at odds with sound health policy—including its cost,its hindsight bias, and its adversarial character—it may be necessary to develop new discretionary institutions to address specific questions that regulators cannot or will not answer.
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