26 January 2019

Liability versus Innovation: Unpacking key connections

Professor Tsachi Keren-Paz (with Associate Professor Tina Cockburn, Queensland University of Technology; Professor Alicia El Haj, Keele University; Dr Michael Fay, Keele University and Richard Goldberg, Durham University)

Stem cell deafness treatment

This ESRC-funded project was conceived in response to perceptions of scientists and clinicians that, despite the pro innovation rhetoric in Government policy documents, the threat of malpractice liability might stifle innovative treatment (IT). It addressed: Empirical questions: what is the extent of defensive medicine and of stifled innovation; is this a real problem; and if so, in what areas of medicine? Methodological questions: how to define and measure innovation; the extent to which changes in legal rules affect levels of defensive medicine and innovation; and the relative weight of tort liability and of disciplinary proceedings in causing defensive medicine and stifled innovation. Normative questions: how to balance the interests of clinicians, patients and society; how best to encourage responsible innovation; whether the regulation of ITs and research should change and/or be more closely aligned.

Key findings included that there is no support for such fears in the UK or Australian context; that there might be jurisdictional differences so claims that such a problem exists in the US cannot necessarily be carried over to the UK; that the reform offered by the Medical Innovation Bill was ill founded, but that there was no consensus whether a better crafted reform is needed or possible; and that no fault compensation to those injured from innovative treatments seems affordable and fair and is unlikely to stifle innovation.

Publications include:
A special issue in (2019) 11:1 Law, Innovation and Technology (Keren-Paz and Cockburn eds).
Keren-Paz, Cockburn & A El Haj, introduction, ‘Regulating innovative treatments: Information, risk allocation and redress’ (2019) 11:1 Law, Innovation and Technology.
Tsachi Keren-Paz, ‘No-fault (strict) liability for injuries from innovative treatments: fairness or also efficiency?’, (2019) 11:1 Law, Innovation and Technology.
Keren-Paz, Cockburn and El Haj ‘Does fear of legal action (tort liability) stifle innovation?’ (2017) 9 Impact: - Social Sciences and Humanities 36-38.

Project website

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Research Excellence Framework 2021 results

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