![handle is hein.journals/linovte11 and id is 1 raw text is:
LAW, INNOVATION AND TECHNOLOGY
2019, VOL. 11, NO. 1, 1-16 Routledge
https://doi.org/10.1080/17579961.2019.1572701 Taylor &Francis Group
INTRODUCTION
Regulating innovative treatments: information, risk
allocation and redress
Tsachi Keren-Paza, Tina Cockburnb and Alicia El Hajc
aSchool of Law, University of Sheffield, Sheffield, UK; bAustralian Centre for Health Law
Research School of Law, Queensland University of Technology, Brisbane, Australia; cHealthcare
Technology Institute, University of Birmingham, Birmingham, UK
ARTICLE HISTORY Received 13 November 2018; Accepted 3 January 2019
This special issue features papers culminating from a six seminar ESRC series
'Liability versus innovation: Unpacking Key Connections,' convened between
December 2015 and September 2017 at Keele, QUT (Brisbane, Australia) and
Durham universities.' The seminar series was conceived in response to per-
ceptions of scientists and clinicians that, despite the pro innovation rhetoric
in Government policy documents,2 the threat of malpractice liability might
stifle innovative treatment (IT).
Such perceptions are supported by two related claims common in medico-
legal literature - that the threat of legal liability following adverse outcomes
causes defensive medicine,3 and that the threat of legal liability stifles inno-
vation.4 The extent of these problems remains disputed. In particular, the
Bolam-Bolitho test of clinical negligence in England - which excludes liability
for clinical decisions accepted as proper by a responsible body of skilled
medical peers unless such practice is illogical5 - is arguably problematic in
terms of incentives to engage in IT. An IT is by definition less likely to
accord with accepted practice. So, while policy-makers encourage and pay
considerable lip service to innovation, tort law might give the opposite incen-
tive to clinicians. Or so goes the argument.
CONTACT Tsachi Keren-Paz 0 t.keren-paz@sheffield.ac.uk 0 School of Law, University of Sheffield,
Sheffield, UK
1See: 'Liability v Innovation: Unpacking Key Connections, An ESRC Seminar Series' https://
liabilityinnovation.wordpress.com/ (accessed 26 October 2018). The support of ESRC towards this
research is acknowledged.
2For example, Government of United Kingdom, 'Innovate UK' www.gov.uk/government/organisations/
innovate-uk (accessed 26 October 2018).
3Daniel Kessler and Mark McClellan, 'Do Doctors Practice Defensive Medicine?' (1996) 111(2) The Quarterly
Journal of Economics 353; Gijs van Dijck, 'Should Physicians be Afraid of Tort Claims? Reviewing the
Empirical Evidence' (2015) Journal of European Tort Law 282.
4Gideon Parchomovsky and Alex Stein, 'Torts and Innovation' (2008) 107 Michigan Law Review 285; Anna
B. Laakmann, 'When Should Physicians Be Liable for Innovation?' (2015) 36 Cardozo Law Review 913.
5Bolam v Friern Hospital Management Committee [1957] 1 WLR 582; Bolitho v City and Hackney Health Auth-
ority [1996] 4 All ER 771.
0 2019 Informa UK Limited, trading as Taylor & Francis Group](ViewImageLocal?handle=hein.journals/linovte11&div=1&collection=&method=preview&ext=.png&size=3)
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