May 11, 2007
"Dispatches from the Tort Wars"
That's the title of a new book review (actually three reviews in one - what a bargain!) by Tony Sebok, forthcoming in the Texas Law Review. The abstract:
It is difficult to avoid the conclusion that, as a political matter, the modern tort reform movement has been very successful. This essay reviews three books that either rebut the tort reform movement's central theses or analyze the strategies that allowed the movement to prevail. I discuss Tom Baker's The Medical Malpractice Myth, Herbert Kritzer's Risks, Reputations, and Rewards: Contingency Fee Legal Practice in the United States, and William Haltom & Michael McCann's Distorting the Law: Politics, Media, and the Litigation Crisis. Although each book has a very different focus from the other two, I argue that a common theme which runs through all three books is that the tort reformers' success relies on promoting myths about how plaintiff's lawyers put their own interests above those of their clients and reject the political culture of individualism that forms the bedrock of American civil society. While I do not want to deny that there is a need for a rebuttal of this part of tort reformers' worldview, I argue that rebutting it has limited value to those who want to defend the current tort system. I argue that an exclusive focus on the myths that the tort reformers have told leaves unanswered other critiques of the current tort system which cannot be so easily dismissed. For example, the tort reformers, as well as others, have noted that the tort system dramatically expanded and changed in the 1960's and 1970's, and that this expansion was often based on academic and political arguments that celebrated the tort system's ability to perform certain functions beyond private redress for wrongs, such as cost-spreading or providing regulation in the face of legislative inaction. By failing to recognize these possible criticisms, the authors of the three books, I argue, leave the hardest battles for another day.
May 10, 2007
The FDA Changes
In the Pipeline has a brief but interesting take on the Senate-passed bill that would change FDA oversight. I'll try to get back to take a more in-depth look at the legislation soon, but I've got a pile of Products exams that demand grading...
May 9, 2007
What Could Possibly Go Wrong?
Do radio stations even have familiarity with the concept of tort law? Because, really, just the lede here -- "The prize is a breast augmentation for women who can show how hard they can party for 30 hours, all while live on the Internet" -- seems like it should create just a couple of raised eyebrows, even if "party" was undefined. Add in the fact that the physician in question is on probation, and it's just super.
The event apparently happened a week or so back, and I haven't heard any reports of disasters (like the Wii contest that ended in death a ways back), so perhaps they got lucky.
RWJ Foundation on Med Mal Modifications
"Improving Drug Safety"
The Kaiser Family Foundation has a webcast (and claims that a transcript will be coming soon) discussing potential reforms of the drug safety process.
Pay for Prescriptions
The NYT has a story focusing on legal but eyebrow-raising payments to physicians by Amgen and J&J relating to prescriptions of anemia drugs -- drugs which are now being questions on safety and efficacy grounds:
Neither Amgen nor Johnson & Johnson has disclosed the total amount of the payments. But documents given to The New York Times show that at just one practice in the Pacific Northwest, a group of six cancer doctors received $2.7 million from Amgen for prescribing $9 million worth of its drugs last year.
Yesterday, the Food and Drug Administration added to concerns about the drugs, releasing a report that suggested that their use might need to be curtailed in cancer patients. The report, prepared by F.D.A. staff scientists, said no evidence indicated that the medicines either improved quality of life in patients or extended their survival, while several studies suggested that the drugs can shorten patients’ lives when used at high doses. Yesterday’s report followed the F.D.A.’s decision in March to strengthen warnings on the drugs’ labels.
And, yes, lots of Google AdWord purchases for the drugs' names and "attorney."
May 8, 2007
Blogging Your Own Med Mal Trial
Federal Officer Removal & Tobacco
Tony Sebok has a Writ piece up about Philip Morris's argument in the Watson case (oral argument transcript [PDF]) that "lights" cases should be removable because they were acting as federal officers in doing the testing and such. Sebok is, to say the least, skeptical:
...I predict that the Eighth Circuit's decision will be reversed by a large majority--if not a unanimous vote--of the Court. There are lots of things wrong with the plaintiffs' "lights" cases, but they won't be solved by preserving the ridiculous fiction that the cigarettes companies were somehow acting on the government's behalf when they took their product to market.
May 7, 2007
Physician Supplies & Malpractice Insurance
Interesting sounding new abstract up on SSRN about physician supply in Pennsylvania. The paper itself, "Changes in Physician Supply and Scope of Practice During a Malpractice Crisis: Evidence from Pennsylvania," is available via the first author. The abstract:
A major point of contention in the policy debates over tort reforms during the most recent malpractice “crisis” has been whether rising liability insurance costs lead physicians to relocate to lower-cost states, restrict the scope of their practice (for example, by eliminating high-risk procedures), or stop practicing altogether. We investigated the extent to which these dynamics occurred in Pennsylvania, one of the states hit hardest by rising insurance premiums, by analyzing 1993-2002 Pennsylvania insurance department administrative data on liability insurance policies held by 47,366 physicians in 18 specialties with high and low liability risk. Our analyses addressed three questions relating to the malpractice “crisis period,” 1999 to 2002: (1) Did the per-capita supply of high-risk specialists in Pennsylvania decrease? (2) How frequently did high-risk specialists stop practicing in Pennsylvania? (3) How frequently did high-risk specialists narrow their scope of practice to exclude high-risk procedures? We used low-risk specialists during the crisis period and high-risk specialists in the years preceding the crisis period as benchmarks for comparisons.
For nearly all specialties, the proportions of high-risk specialists restricting their scope of practice were not significantly different during the crisis period than before. Overall, less than 3% (average annual percentage) of physicians performing major procedures shifted to minor procedures only (0.7%) or no procedures (1.8%) during the malpractice crisis period, and 8.2% of specialists performing only minor procedures shifted to no procedures.
In the analysis of physicians leaving Pennsylvania practice, most specialties saw 10 to 20% of their ranks exiting practice each year. However, there were no statistically significant differences in the proportion leaving between high-risk and low-risk specialties, or among high-risk specialists during versus before the crisis period.
The overall supply of physicians in Pennsylvania (including new entrants to the Pennsylvania market) grew 5.8% between 1993 and 2002, from 181 to 191 per 100,000 Pennsylvania residents. The total per-capita supply of high-risk specialists increased slightly during the crisis period. The only notable decrease in physician supply was in Obstetrics-gynecology: the supply of Ob-gyns dropped 8% during the crisis period. However, the decline continued a trend that predated the onset of the crisis.
Our analysis found much more modest effects of the liability crisis on physician supply than have been suggested by physician survey studies. We discuss several methodological issues which may explain the disparate findings regarding physician supply effects in studies that administrative datasets and studies that rely on physician survey data.
Whoo! That's a long abstract. If you made it through, let me reward you with a photo of my daughter with John Flansburgh and John Linnell of They Might Be Giants, who she interviewed for our radio show.
Massachusetts SJC Upholds $2M Libel Verdict
A couple of years ago, the Boston Herald published stories critical of Judge Ernest Murphy, including an allegation that he said that a rape victim should "get over it." The Supreme Judicial Court upheld a $2 million verdict against the paper on Monday (AP story, opinion).
Sunstein on "Illusory Losses"
Cass Sunstein has a piece up on SSRN addressing the growing literature about hedonic losses and that literature's implications for the tort system. The abstract:
Recent empirical work demonstrates that people's self-reported happiness is remarkably resilient to many large changes in life conditions; apparently significant adverse events often inflict little or no hedonic damage. One reason for this surprising result is people's power of adaptation. An additional and perhaps more fundamental reason involves attention: Most of the time, people go about their lives without attending to, or focusing on, adverse conditions, and hence those conditions inflict little hedonic harm. If people make “hedonic forecasting errors” about their own lives, they are highly likely to make such errors when assessing hedonic losses experienced by other people. These findings have important implications for the legal system, especially in the context of awards for pain, suffering, and hedonic losses. A special problem is that if people adapt to adverse changes because they cease to focus on them, the context of litigation will produce a serious distortion, because the attention of juries and judges is specifically focused on adverse changes. But there are two qualifications. First, some losses inflict significant hedonic damage, because people cannot help focusing on them; chronic pain, anxiety, and depression are the most obvious examples. Second, people may suffer “capability loss” without suffering hedonic loss, and the legal system should award compensation for “capability damages.”
These claims have broader implications for questions of law and policy, including appropriate priority-setting for governments concerned with the welfare of their citizens. For example, increases in Gross Domestic Product are not correlated with increases in self-reported happiness, in a way that raises serious questions about the focus on GDP; but perhaps GDP growth is connected with social gains that are not captured by self-reported happiness. There are also fundamental questions about the relationships among hedonic consequences, meaning, and the ingredients of a good life. The simplest conclusion is that pervasive existence of hedonic forecasting errors raises the possibility that both economic and regulatory policies are misdirected.