Professor Epstein has long promoted replacing tort-based malpractice law with a new regime based on contracts. In Mortal Peril, he grounded his normative arguments in favor of such a shift in the positive, doctrinal history of charitable immunity law. In this essay, in three parts, I critique Professor Epstein’s suggestion that a faulty set of interpretations in charitable immunity law led to our current reliance on tort for malpractice claims. First, I offer an alternative interpretation to Professor Epstein’s claim that one group of 19th and early 20th century cases demonstrates a misguided effort to protect donor wishes. Rather, I maintain that these cases make more sense when understood in the context of trust law. Second, I argue that another group of cases — cases based on indigent patients’ implied waivers of tort rights in exchange for charitable services — is not best understood as being based on implied contracts, as Professor Epstein claims. Rather, these cases are better understood as enforcing tort privileges that arise from the charitable status of the defendant. Finally, I critique Professor Epstein’s contention that a charity’s ability to waive immunity for some or all plaintiffs reveals that immunity doctrine more comfortably fits with contract theories than tort theories.
Horwitz, Jill R. "The Multiple Common Law Roots of Charitable Immunity: An Essay in Honor of Richard Epstein's Contributions to Tort Law Scholarship." J. Tort L. 3, no. 1 (2010).