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.
Founded in 1959, the Arizona Law Review is a general-interest academic legal journal. The Review is edited and published quarterly by students of the University of Arizona James E. Rogers College of Law.