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The Ambiguity of Tort Law Regarding Drugs

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Tort law has evolved from what it started off as, to what it is now. Originally tort law was a third party based relationship, wherein parties had no prior relationship so they were not able to base a trial on preexisting conditions, hence it was up to the courts to decide and settle on liability based issues. Modern tort law has evolved way beyond that point and is now based primarily on recognizing the relationships between parties, which results in three different types of indications. The first one is related to existing terms on what would carry out in the event of an incident through contracts and waivers, which if not adhered by all parties would lead to a suit. The second one is when both the parties agree on the existing terms and a small compensation pay can be made. The last one is reflected in the form of insurance, the payment to the injured party will be included in the price of the good and will thus be paid by the consumer through premiums.

The ‘Markets, tort law, and regulation to achieve safety’ article also brings light to the fact of existing problems with product liability and the malpractice system. Firstly, for widely sold products and services their already exists market and regulatory forces that already lead to safety, so the tort liability seldom increases safety anymore than it already exists. Second, the system of tort liability is very expensive when taking into consideration administration and transaction fees, like legal charges; which is often why it becomes apparent that it is not ideal for victims seeking compensation. And lastly, it is not always guaranteed that the tort system will bring about an increase in safety as it operates on a different level of terms. When speaking about tort law in terms of safety, it provides the least amount of safety whereas we established earlier that markets provide the most amount of safety for consumers.

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Ambiguous goods are about the reciprocity of risks, they are goods that increase the risk of something’s but reduce the risks of others. A major example of ambiguous goods are drugs, where they function the way they need to but at the same time may create other risks. Tort law specializes in ambiguous goods for several reasons the first being because of the aspect of danger already exists to a certain degree in most ambiguous goods, since most of them deal with the medicinal community there is the probability of danger like death already occurring. And due to the uniqueness of their situation it may be impossible to determine whether that the harm to their health occurred because of the good or service. Another reason for the targets being doctors and pharmacies outside of the already existing side effects their jobs can bring, is also because they are wealthy professions and are backed by insurance. Because tort law deals with the medical profession it may be possible that it increases the costs of that system therefore making it an external problem for others who rely on this system to survive, and will not be able to afford it through increase insurance premiums.

Government regulations as they relate to drugs are possibly one of the most cautious fields as almost all of the population consumes medicine and there are numerous things that could go wrong. With that frugality there is a incredible scrutiny that goes into approving a drug by the FDA and this sense of over cautiousness can lead to necessary drugs being delayed in approval, which can potentially kill a patient who could be saved by that pending drug; this also eludes to the fact that most drugs which get approved are beneficial for the consumer. The tort law and the regulation process of these products and services is very stringent and limits the access to patients, which in both ways can be daunting and hard for all parties involved. The primary problem with the tort system in relation to the medical field is that it can increase the prices of medicine considerably because their will not be enough manufacturers for the drugs, hence creating a monopoly.


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