Unlimited Subrogation: Improving Medical Malpractice Liability by Allowing Insurers to Take Charge

Kenneth S. Reinker and David Rosenberg

The Journal of Legal Studies, 2007, vol. 36, issue S2, S261-S289

Abstract: This article proposes unlimited insurance subrogation (UIS) to improve the insurance and deterrence results of medical malpractice liability. Unlimited insurance subrogation enables patients to assign their entire potential medical malpractice claims to their first-party insurers without limitation as to the amount the insurers pay out in benefits or recover in tort damages. Unlimited insurance subrogation should improve insurance outcomes by converting suboptimal tort insurance into more optimal first-party insurance. Establishing first-party insurers as plaintiffs to confront liability insurers on the defense side should improve deterrence through more effective prosecution of meritorious claims and by harnessing the insurers' incentives for cooperation to reduce meritless and unnecessary litigation. In addition, UIS should encourage further reforms by contract between the first-party and liability insurers who would take charge of the system. This article shows that loss of patient cooperation, insurer gaming, and other possible problems with UIS are unlikely to arise or are readily solvable. (c) 2007 by The University of Chicago. All rights reserved.

Date: 2007
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