November 11, 2006
Updated: Med Mal & Incentives
David Hyman (Illinois) and Charles Silver (Texas) have a new SSRN paper reflecting their Vanderbilt Law Review article, Medical Malpractice Litigation and Tort Reform: It's the Incentives, Stupid. The abstract:
Health care providers and tort reformers claim that the medical malpractice litigation system is rife with behaviors that are irrational, unpredictable, and counter-productive. They attack civil juries, asserting that verdicts are skyrocketing without reason, are highly variable, and bear little or no relation to the merits of plaintiffs' claims. They complain about patients, arguing that the few with valid claims sue rarely, while the many who receive non-negligent treatment sue all the time. They attack greedy lawyers, alleging that they rake in obscene profits by routinely filing frivolous complaints.
Many of the preceding claims are facially implausible. The medical malpractice liability system is an enormous market whose principal trading partners - trial lawyers and liability insurers - are sophisticated, economically-oriented repeat players. They run the system, and they have the knowledge and incentives to select efficient means to accomplish their respective ends. Given this backdrop, their behavior and the behavior of the system they administer should not be random, or even particularly hard to explain. Nor, given the absence of market power and barriers to entry, should attorneys earn more than market-driven returns on the services they provide.
Most of the preceding claims are also inconsistent with empirical studies of the medical malpractice liability system. These studies depict a system that is stable and predictable, that sorts valid from invalid claims reasonably well, and that responds mainly to changes in the frequency of errors and the cost of dealing with them. The system does have a number of pathologies, however, including its loading costs, the snail's pace at which it processes claims, and its failure to compensate patients injured by medical negligence as fully and as often as it should.
It is possible to reform the liability system to address these shortcomings, but tort reform proposals like caps on non-economic damages and attorneys fees will not do so. The goal of these proposals is to reduce insurance prices by making the system less remunerative for claimants. If implemented, these measures will predictably worsen the problem of under-compensation, and weaken providers' incentives to protect patients from avoidable perils.
Updated:Ted Frank has a look at the article on PoL.
November 10, 2006
BP Settles Texas City Suit
BP has settled the claim that was on the verge of going to trial relating to the tragedy at their Texas City refinery. Along with a payment to the decedent's daughter,
BP will donate $12.5 million to the adult burn unit of the University of Texas Medical Branch at Galveston; $12.5 million to a process safety center at Texas A&M University; $5 million to the College of the Mainland in Texas City for safety and training of refinery and chemical plant workers; $1 million to the cancer center at St. Jude's Children's Research Hospital in Memphis; and $1 million for Hornbeck, La., schools, which Rowe attended and where her mother taught before working for BP.
The Tortellini has some thoughts about why, and the interesting note that the United Steelworkers was going to webcast the trial. (That website is worth checking out in its own right, even without the webcast.)
(Earlier post on some coverage of the case.)
November 9, 2006
Note to Self: Never, Ever Tailgate a Greyhound Bus
The Smoking Gun tells you why and has the complaint:
In a Court of Common Pleas lawsuit, Robert and Angela Stokes charge that they were driving last May (Mother's Day, to be exact) on I-75 in Toledo when "Greyhound Bus No. 6426" suddenly "emptied the contents of its latrine." The Stokes, who were traveling with their three children, claim that they and their 2002 Ford Explorer were covered with "human urine, human feces, toilet paper, other waste products" and a liquid toilet chemical known as F-104 Inca Gold.
I am particularly amused that someone gave a liquid toilet chemical a name that sounds like it should be featured in a sentence reading something like "Dude, pass me that Inca Gold; that's some bad-ass stuff there."
Spectators Accept the Risk of Baseballs, Bats, and, Um, Relievers Throwing Chairs?
An interesting update in the lawsuit involving a heckler at a Rangers/A's game, a thrown chair by Rangers reliever Frank Francisco, and the chair hitting the heckler's wife:
According to the East Bay Express, Craig Bueno, the screamer who pissed off the Rangers so badly in the first place, is being smeared by the Rangers in the suit. The team is digging up dirt on him, like his supposed "explicit" pictures in his firehouse (he's a fireman), in order to, uh ... well, we're not really quite sure what it has to do with the lawsuit, actually.
The East Bay Express story is here.
Loaded, Meet Question
An interesting, but ultimately pretty empty, poll released by the Institute for Legal Reform (via Overlawyered.) Its basic idea (and clearly the goal of doing the poll in the first place) is to argue that Democrats should include litigation reform in their agenda, and that swing voters would support them more if they did so. That may in fact be so. But the questions so strongly suggest the answers that, while it's not quite push polling, it's certainly not terribly convincing. For instance:
5. If Democrats win the majority of seats in Congress and their agenda for next year included reforms to end lawsuit abuse by trial lawyers, would that give you a – more favorable or less favorable impression of the Democrats in Congress?
6. If your Member of Congress voted FOR reforms to end lawsuit abuse by trial lawyers would you be more likely or less likely to vote for him or her, or would it make no different in your vote decision?
Well, shucks, I'm against lawsuit abuse by trial lawyers! I'd guess most trial lawyers would say they're against lawsuit abuse by trial lawyers. Lawsuit abuse is bad! Bad!
There are too many lawsuits filed in America, which ends up making all of us pay more for everyday goods and services.
There are too many lawsuits filed in America, which clogs up the court system and makes it harder for those truly injured to get justice.
Again, yeah, that makes sense! I heard about that one time that the woman sued the store because her own son made her fall down, and that other time the guy who was stealing a hubcap sued the driver for running over his hand. And I had to wait a long time to contest my traffic ticket.
Perhaps more damaging to the conclusions is that the poll focused exclusively on issues of legal reform. I didn't see a single exit poll that included litigation reform as a common (or even uncommon) response to open-ended questions: "Asked which issues were extremely important to their vote, 42 percent said corruption and ethics; 40 percent, terrorism; 39 percent, the economy; 37 percent, Iraq; 36 percent, values; and 29 percent, illegal immigration." (CNN; see also Gallup's Top Ten, which does include healthcare and "fixing government itself," but neither of those items indicates litigation reform).
I've noted my support for a fair number of reforms, and opposition to others, in the past; that's not what this post is about. But this poll doesn't convince me of anything except that the Institute for Legal Reform would like (surprise!) legal reform, and that a lot of people believe -- accurately or not -- that the legal system is overrun with crazy lawsuits, especially when asked a leading question suggesting that to be the case.
November 8, 2006
Those Hips May Not Be Judgment-Proof
Bar holds "Shake it Like Shakira" dance contest.
On the bar.
(Also, thanks to WCBS-TV for hilariously including a picture of empty drink glasses with the story. "Oh, so that's what drinks come in?")
(And yes, I know the title of the post doesn't make sense, since Shakira is not herself being sued.)
November 7, 2006
Solicitor General Asked to Advise Supremes on Preemption
I didn't notice this story yesterday, but it's a pretty big deal.
In an order issued yesterday, November 6, the Supreme Court asked (read: required) the Solicitor General to express the views on the United States in an important preemption case from the Second Circuit, Riegel v. Medtronic. The Court will consider the S.G.'s views before deciding whether to grant certiorari. The question in Riegel is whether the Medical Device Amendments to the Food, Drug, and Cosmetic Act preempt state-law suits seeking damages for injuries from medical devices that have received FDA pre-market approval.
OT: Torts Returns to Triumph Over IP
The Raspberry Tort(e)s, the only fantasy football team endorsed by TortsProf blog, won yesterday over the Brkln Drppd Vwls, owned by Andrew Paff of the IPTA Blog. "IPTAblog is a weblog about the relationship between the law, communications technology and the creative arts."
The Tort(e)s are now 4-5. If the playoffs were held today, we'd be watching from here.
Our neighbor the Law Librarian Blog has a ton of terrific election resources.
...and while I tend to prioritize some other issues somewhat higher than litigation issues (and, like Walter, discount the centrality of litigation issues to most any elections), you should check out the Point of Law discussion. (Even though I disagree with substantial portions.)
(Sorry for the slow posting for the last couple of days - kid illness complicates things.)
November 6, 2006
Texas Doctor Numbers
The discussion at TortDeform continues to be quite good.
November 5, 2006
Doubling Up - Charity & Tort Damages
This article examines certain tensions between charity law and tort law, and the interface of between charitable giving and public disaster relief programs that draw upon tort law concepts. It does so by exploring the conflict between: (a) the restrictions that charity law imposes on the use of charitable assets to assist injury victims; and (b) tort law's approach to compensating injury victims who received charitable gifts. Specifically, it examines tort law's application of the collateral source rule to charitable gifts that provide victims with more resources than needed to relieve their financial distress.
To illustrate this phenomenon, the article describes the interaction between money distributed to the victims of the September 11th terrorist attacks and the money distributed to them by the September 11th Victim Compensation Fund. The Fund's administrators decided to ignore any charitable gifts already already distributed to 911 victims when setting their awards from the Fund. This article criticizes this approach and instead contends that any charitable surplus - i.e., that part of the charitable gift not needed to relieve the financial distress of 911 victims - be directed to other related charitable purposes.