Fascinating. First you create a fictional strawman that you devote several posts to without any evidence that the strawman even exists. Then you quote Liberty Mutual as "opposed" to the strawman, when it is in fact about "reduc[ing risk] to acceptable levels" and isn't proposing anything that any business isn't already doing--it's just selling its services as a consultant to help the business engage in these goals. Then, when a corporation does reduce risk to "acceptable levels," and those acceptable levels of risk result in inevitable injury, you accuse the corporation of putting profits before people for not reducing risk more and are mad that reformers suggest that punitive damages may not be appropriate in such a circumstance.

"you accuse the corporation of putting profits before people for not reducing risk more and are mad that reformers suggest that punitive damages may not be appropriate in such a circumstance."

There is no debate that in certain circumstances punitive damages may not be appropriate. That's not where the reformers draw the line though, is it Mr. Frank? In fact, are you able to make reference to one single proposed tort reform that would allow for uncapped punitive damages under appropriate circumstances?

The fallacy is that the legal System is less than perfect and it expects every other institution to be just perfect . Shouldn't charity start at home for the least accountable Govt. mandated institution? Oh I forgot it is the quest for others (im)perfections that keeps them in business and I'm just a human being.

Really? So surgery patients who wake up with the wrong leg amputated, or a surgical instrument left in their body, or untreated (yet diagnosable) cancer should chalk it up to human imperfection?

Nursing home patients that suffer due to LTC facilities who favor profits over quality by constantly under-staffing should simply say, "hey, at least this is the last place on earth I will ever have to deal with institutional imperfection?"

It seems to me that it's the citizens, the consumers who are tired of insititutional laziness, carelessness, and "profits over safety" attitudes. It is those consumers who turn to the justice system for compensation, for punishment, for establishment of reasonable social policies.

I don't see any tort reforms to date, other than the med. mal. system in place in MA., that attempt to improve the imperfections of the judicial system, only reforms that provide near if not total liability immunity to (potentially) reckless and careless defendants.

I don't see any tort reforms to date, other than the med. mal. system in place in MA., that attempt to improve the imperfections of the judicial system

Then you haven't paid much attention--especially since its DMI's trial-lawyer allies that have been trying to reverse reforms like Daubert and Kumho Tire that did much to improve the imperfections of the judicial system.

Touche'. I was referring to the fact that the current trend in liability reform and damage caps, in my opinion, only limits the number of law suits and size of damage awards without addressing many other critical issues.

I would be very interested to hear your views on DMI's approach to Daubert and Kumho, have you written anything on the subject?

I appear to have misspelled "it's" in the previous comment. How embarrassing, and it should teach me not to post in a place I cannot edit my writing when I have a head cold, a mistake I am about to make again.

John, I haven't written as widely on expert evidence issues because other scholars such as David Bernstein and Peter Huber have a comparative advantage in that area, but I briefly addressed a trial-lawyer-supported attack on Daubert in 2003:

http://www.overlawyered.com/2003/07/daubert_debate.html

In response to your earlier November 9 question, everyone supports some cap on punishments, even our Constitution. For example, even Eve Gittelson likely wouldn't punish medical malpractice by having the offending doctor's home burned to the ground, the doctor's family slaughtered in front of her, and then having the doctor publicly flayed and drawn and quartered with her head displayed on a pike, though such a punishment would deter medical malpractice more surely than any award of financial damages. The question then becomes of where best to set the line of caps to maximize desired outcomes. For example, scholars such as Professor Silver believe that more medical malpractice liability is needed and that caps go in the wrong direction (though Silver also acknowledges the problem of "over-claiming"). The evidence suggests to me that there is too much malpractice liability in the status quo, that health outcomes would improve with a decrease in liability, that the status quo malpractice liability system is sufficiently random and inaccurate and inefficient that it does not provide proper incentives for improving healthcare, and that caps are an imperfect means of reducing variance in awards that improves the functioning of the liability system and brings the level of malpractice liability closer to the optimal amount.

Ted,
Sorry to hear you were ill over the long weekend, I hope you were still able to enjoy at least some of it.

Your example re: limitations on caps, although extreme, is well taken. I think it nicely demonstrates the difference between punitive damages that serve only to punish, and punitive damages that intend to punish and DETER.
I am unconvinced that potential liability for negligence is unrelated to improvements in quality...whether we are discussing medical care or PL.
Comining caps with heightened evidentiary requirements creates a circular solution in which all DIRECT benefits are reserved for the defendant. Or, to apply the coarse theorem we have previously discussed...transactional costs increase dramatically for one side while decreasing commesurately for the other...resulting in a complete lack of transactions (in this case, law suits.)

So, it would appear that the real goal in implementing caps and increasing evidentiaryrequirements for proof of liability is to eliminate law suits, not to improve health care out comes.

"I am unconvinced that potential liability for negligence is unrelated to improvements in quality."

As well you should be. I'm not aware of anyone who makes that argument.

You ignore, however, all of the incentives. Potential malpractice liability doesn't just make medical malpractice more expensive, it makes medical practice more expensive. And the empirical data is convincing to me that the latter effect is much larger than the former effect. Reducing litigation improves health-care outcomes. And because such a large percentage of filed malpractice cases are meritless (which is sometimes equated with "frivolous" in the political discussion, though that word has a distinct legal meaning considerably narrower than "meritless)--40% in the most recent Harvard study, which, if anything, underestimates the figure because of failure to account for hindsight bias--it is possible to both improve the accuracy of litigation and reduce the amount of total litigation while at the same time increasing the number of incompetent doctors who are held to account.

"And because such a large percentage of filed malpractice cases are meritless...40% in the most recent Harvard study"

No, Ted. I assume you're referring to the May, 2006 study published in The New England Journal of Medicine. The title for the press release Harvard issued about the study was, "Study Casts Doubt on Claims That the Medical Malpractice System Is Plagued By Frivolous Lawsuits."

Some key findings of the study:

"In fact, the number of meritorious claims that did not get paid was actually larger than the group of meritless claims that were paid."

"Many of the current tort reform initiatives, such as caps on noneconomic damages, are motivated by a perception that ‘jackpot’ awards in frivolous suits are draining the system,” explained Michelle Mello, an associate professor of health policy and law at HSPH and a co-author of the study. “But nearly 80% of the administrative costs of the malpractice system are tied to resolving claims that have merit. Finding ways to streamline the lengthy and costly processing of meritorious claims should be in the bullseye of reform efforts.”"

As I explained, the study also found only THREE precent of claims are meritless. I wonder if you have any suggestions on reforming the legal system to insure that the 27% of malpractice victims who received no compensation would receive compensation? I don't think damage caps or heightened evedentiary standards would do it...

And lest I be accused of a fundamental lack of spelling abilities, I meant "percent" and "evidentiary." For Corpreform, I've been blogging with Word 2007, which allows me to publish directly to Typepad from Word. I love that, and highly recommend Office 2007 and Vista. I just need to figure out how to get Word 2007 to publish to Movable Type here.

Justin, you're trolling again. Either you're being deliberately dishonest or you read only the title of the press release and the ATLA talking points rather than the study itself. The study itself found that 40% of claims filed were groundless claims that lacked any evidence of medical error. The 3% figure refers to the subset of the 40% where the patient hadn't even suffered any injury but sued anyway.

Ted,

I don't agree that I ignore the incentive but I think that you tend to downplay the possibility of aternative reform measures which have a less negative impact on claims that are meritorious.

Isn't the better solution to heighten the standard of proof before allowing suit to be brought? Rather than placing damage caps shouldn't we place higher standards than simply notice pleading for med. mal.?

Won't we see the same improved health care outcomes without the negative impact on the recovery of injured victims of malpractice?

Trolling? By quoting from the author of the study and from Harvard's own press release?

The fact of the matter is that this study doesn't say what you say it does. At least when I made a factual error in my Ford Pinto post, I had the common decency to correct my error and thank the professor who brought it to my attention. I certainly didn't call him a troll. (Or you, for gleefully highlighting his post and mocking me at Overlawyered.)

My hyperlinks don't appear to be linking, but if you go to corpreform.com and use the search box to search for "3%", you'll find out what the study really said.

I do have one small favor to ask of you: It was probably just an error made out of haste, but you referred to me as Justin in your last comment. Could you either call me Justinian, J.C., or as you sometimes do, Lane? And if you'd prefer for me to call you Ted, or Frank, or something else entirely, certainly let me know. Thanks.