TortsProf Blog

Editor: Christopher J. Robinette
Southwestern Law School

Friday, May 2, 2008

Medical Malpractice: Actors, Flaws, and Reform (II)

Yesterday, I started this med mal series here.  I'll finish discussing the flaws next week.

II.          Flaws

               The first problem with medical malpractice litigation is uncertainty, both as to liability, and as to the proper amount to award for pain and suffering.  Uncertainty leads to two further problems:  delay and high transaction costs. 

          A.          Uncertainty

               In the medical context, the problem begins with the sheer number of potentially negligent defendants:  physicians, nurses, hospitals, equipment and drug manufacturers, etc.  Add to that the complexity of the evidence.  Any fault, whether multi or monocausal is difficult to prove due to the intricate nature of the human body.  That is especially true given that adverse consequences due to a physician’s negligence—if any—must be separated from preexisting conditions that simply further developed during the course of treatment.

               In attempting to single out the blame of these actors, the fault standard gives limited guidance.  The health care provider is supposed to act “reasonably,” with custom typically dispositive as to reasonableness.  However, in all but the clearest cases, there are medical experts who will opine both that there was and was not a breach of the standard of care.

               The problem of uncertainty is perhaps worse in determining the amount of a plaintiff’s pain and suffering damages.  There is, after all, no market by which to determine the amount of pain and suffering.  In comparing the vagueness of punitive damages (which are regulated by the Constitution) to the vagueness of pain and suffering damages (which are not), Professor Mark Geistfeld points to the California jury instructions.  Mark Geistfeld, Constitutional Tort Reform, 38 Loy. L.A. L. Rev. 1093, 1105-06 (2005) (quoting California Jury Instructions-Civil 14.13).  To say the standard for measuring pain and suffering is uncertain is merely to paraphrase the instruction itself:  “No definite standard [or method of calculation] is prescribed by law.”

               As a result of the uncertainty in assessing pain and suffering, legally irrelevant factors such as poverty, race, gender, and even whether judges are elected influence the amounts awarded by juries.  See, e.g., Eric Helland & Alexander Tabarrok, Judge and Jury:  American Tort Law on Trial (2006); Edie Greene & Brian H. Bornstein, Determining Damages:  The Psychology of Jury Awards 55-57 (2003).



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More criticism of how some litigation finance outfits, lending in almost completely unregulated market, treat unsophisticated clients [Daily Business Review] Christopher Robinette [TortsProf] begins a series on med mal law [parts one, two, three, four,... [Read More]

Tracked on May 13, 2008 7:32:59 AM


The Medieval garbage concept of the "chain of causation," is replaced by the "cluster of factors" analysis. In any major adverse event, there may be twelve errors clustering. That explains the rarity and unforeseeability of these adverse events. This concept is from air crash analysis. If the aim is prevention, then each factor has to be prevented in continual quality improvement.

One effect of litigation is the foregoing and the cover up of this cluster analysis. The chain of causation is anti-scientific and harmful, by preventing the thorough analysis and prevention of this investigation. If bad outcomes stem from clusters, then medmal has to end, because there is no chain of causation. If a doctor has made a harmful error, there are always 11 unforeseen intervening causes that break the legal chain of causation.

Here is another. When a checklist was shown to markedly cut down the incidence of a lethal hospital infection, rent seeking lawyers in Washington ended the study, calling it human experimentation rather than quality improvement.

Why would lawyers want to stop the widening of a study of a checklist, essentially a count, paper shuffling? To generate cases in rent seeking.

Posted by: Supremacy Claus | May 2, 2008 5:51:14 AM

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