Negligent Release Litigation: a Proposal for Procedural Reform

Abstract

Much of what has been written lately regarding tort reform has dealt with substantive as opposed to procedural concerns. This paper offers a preliminary proposal regarding procedural reform that would potentially correct for the hindsight bias in negligent release litigation and have application in other torts contexts involving transferred responsibility. The proposal for bifurcated trial proceedings is worthy of consideration by legal scholars and policy makers as a potential mechanism for ensuring fairness and improving the quality of justice. As a footnote, it might be added that social scientists might contribute to the assessment of the proposed bifurcation procedure by conducting jury simulation studies that investigate the impact of bifurcated vs. non-bifurcated procedures as a function of strong vs. weak evidence of clinician negligence in mock negligent release cases.