Current Tort System Research Articles

Valuing Black Lives: A Constitutional Challenge to the Use of Race-Based Tables in Calculating Tort Damages

This Article challenges a practice in tort law that is ubiquitous, yet little noticed—namely the use of race-based wage, life expectancy, and work-life expectancy tables when calculating damage awards. The practice results in damage awards that are significantly lower for black victims than for white victims and creates an incentive for potential tortfeasors to allocate risk disproportionately to minority communities. This Article argues that the use of such tables is not only unfair; it is unconstitutional. Specifically, the Article argues that the use of race-based tables to calculate tort damages violates the Equal Protection Clause of the Fourteenth Amendment. The Article goes on to consider the broader implications of this argument and to explain why the move to truly race-neutral damage awards would require even more radical changes to our current tort system.

Medical Malpractice Reform: The Role of Alternative Dispute Resolution

Alternative dispute resolution (ADR) refers to techniques used to resolve conflicts without going to the courtroom. As healthcare and malpractice costs continue to rise, there is growing interest in tactics such as early apology, mediation, and arbitration in the medical arena. (1) Why is ADR needed? (2) Is ADR useful in health care? (3) What are the current legal and political developments favoring ADR? (4) What obstacles remain? We performed MEDLINE, PubMed, and Google Scholar searches with key words "medical malpractice", "ADR", and "alternative dispute resolution" to obtain public policy studies, law review articles, case analyses, ADR surveys, and healthcare review articles. Early apology and disclosure programs report 50% to 67% success in avoiding litigation as well as substantial reductions in the amount paid per claim. Mediation boasts 75% to 90% success in avoiding litigation, cost savings of $50,000 per claim, and 90% satisfaction rates among both plaintiffs and defendants. Arbitration is viewed as less satisfying and less efficient than mediation but still more time- and cost-effective than litigation. The current legal environment is favorable to ADR with recent court decisions upholding pretreatment arbitration clauses. The main obstacle to ADR is the mandatory reporting requirement of the National Practitioner Data Bank (NPDB). ADR has the potential to help reform the current tort system, reducing cost and increasing both parties' satisfaction. Easing the reporting requirements for the NPDB would lead to more widespread acceptance of ADR among physicians.

Physician liability insurance reform

Summary Rapidly rising medical malpractice insurance costs are causing reduced access to health care services. Physicians and other health care professionals are limiting or discontinuing high-risk procedures and services to reduce their malpractice insurance cost and potential liability; patients are forced to travel greater distances to obtain these health care services. The cause of the rapid rise in medical malpractice premiums and the effects of the tort system upon these increases continue to be debated among stakeholders. Nevertheless, studies have demonstrated that the current tort system fails in its goals to compensate victims of medical negligence and as deterrence to the occurrence of medical errors. A broad-based approach that includes insurance reform, enhancements to the physician peer review system, a protected system of reporting medical errors, and federally funded studies to determine alternate methods of resolving medical malpractice claims are required to restructure the current medical liability system.

The Cy Pres Problem and the Role of Damages in Tort Law

Class action litigation presents a common problem that has received little discussion in the academic literature. In almost every case, the plaintiff class's recovery is not fully distributed. For example, all possible plaintiffs may not come forward with their claims, the plaintiffs may not be ascertainable, or claims may not be timely submitted. Administrators are regularly posed with the problem of what to do with these residual funds. Currently, courts are free to do virtually anything with such funds. The system is ad hoc, unpredictable, and unguided by any normative principle. In these cases, I propose that the funds should escheat to the state. On a regular basis, the state could then distribute these funds to the citizenry. Ex ante, all citizens are equally likely to find themselves exposed to the risk that led to the class recovery in the first place. Escheat to, and distribution through, the state thus disburses money on average equally to all of those who are potential victims. I generalize from the context of residual funds to argue that recovery in all class actions and other collective adjudication should escheat to the state for distribution (assuming that losses are small relative to wealth or that pecuniary loss is covered by first-party insurance). Individuals would not be compensated ex post in close tailoring to their actual loss as under the current tort system, but with a view to the average risk borne ex ante. Ex ante, individuals could find themselves in any of several worlds (wealthy, poor, injured, not injured, &c.), and since all individuals expect to share in an increase in the state's treasury, money in state coffers would accrue to the benefit of all individuals. Distributed this way, tort damages would solve several problems: the link between harm and compensation, uncertainty, distorted consumption and production incentives, free-riding, and high administrative costs. This argument dramatically reshapes the way damage awards are viewed in our tort system.

Case for Tort Reform in Medical Malpractice

Under tort law, injured parties have the basic right to seek indemnity for wrongful injury, including injury from medical malpractice. Unfortunately, the present system is associated with many undesirable secondary effects, including problems of patient access to care, excessive testing or overtreatment, and undertreatment due to doctors' fear of malpractice. Nationwide, there are innumerable cases of doctors abandoning obstetrical or other high risk practices, or migrating away from states with less friendly tort laws. The California MICRA legislation of 1976 is often cited as a model for tort reform, but even this model legislation may be insufficient to restore a beleaguered trust between medical providers and their patients. Several key research studies suggest that the jury system fails to fairly and reliably compensate injured patients, and fails to deter or discipline errant doctors. To adequately meet the common needs of patients and health care providers, there must be an appropriate emphasis on aggressive risk management, quality improvement, patient safety, professional oversight, and responsible insurance underwriting. Moreover, there must be a systemic improvement of the current tort system as it pertains to medical malpractice. Although incremental reforms at the state level are slowly occurring and should certainly be supported, a greater reward may ultimately stem from more radical restructuring to a system of medical tribunals.

Health care on trial: America's medical malpractice crisis.

The specter of medical malpractice in the United States has assumed crisis proportions. The American Medical Association has declared that malpractice issues are at least “serious and deteriorating” in 44 states.1 Public awareness has been heightened by sporadic reports of physician work stoppages or closures (at least temporary) of hospital high-risk services (eg, emergency rooms, obstetrics).2 In addition, physician outmigration has occurred from the most egregiously affected regions. A crossroads in American medicine has been reached that both threatens public access to quality care and further endangers an already limited supply of subspecialty physician providers.3,4 Conversely, public disclosure of medical error and negligence5,6 has prompted reasonable demands for responsibility among healthcare providers and compensation to the injured parties. The multiple and diverse factors that have contributed to the current crisis, its medical and public ramifications, and potential remedies are detailed in the present issue of Circulation by Donald J. Palmisano, MD, JD, President of the American Medical Association, Robert Cline, MD, a cardiothoracic surgeon, and Carl J. Pepine, MD, Immediate Past President of the American College of Cardiology.7,8 At the heart of the malpractice crisis appears to be a tort system without adequate controls.9 This system has aptly demonstrated its ability to obtain large settlements in the class action case of silicone breast implants without strong scientific evidence for their harm.9 The expert opinions from noted thought leaders expressed in Circulation are remarkably passionate and consistent in their professional pride as well as commitment to compassionate, quality patient care. Our experts express hope that we are on the verge of a meaningful change in the current tort system, as well as fear of the consequences if change does not occur. On the other hand, we also must be mindful of the fact that …

(In)juries, (In)justice & (Il)legal Blame: Tort Law as Melodrama - Or Is It Farce?

A 1999 Institute of Medicine (IOM) report, To Err is Human: Building a Safer Health Care System, calls for shifting attention away from the faults of individual care providers to the overall system. The current tort system's blame culture is itself blamed by the IOM for impeding improvements to patient safety because it deters physicians from reporting their errors in the first place. But the manner in which personal injury cases are prepared and litigated is totally at odds with the IOM report's emphasis on systemic causes of avoidable medical failures, according to law professor Neil Feigenson, who describes the dichotomy in his book, Legal Blame, published by the American Psychological Association in 2000. Instead of uncovering the systemic origins of accidents, personal injury litigation distorts accidents as not only having a single cause but also paints them melodramatically by finding a histrionically reprehensible flaw on the part of some single individual. Thus complex institutional factors are not just ignored, they're repressed. The IOM report and, especially Legal Blame are analyzed in the article by O'Connell.

The Purpose of Peer Review

The Purpose of Peer Review

No-fault medical liability in Virginia and Florida. A preliminary evaluation.

State governments are experimenting with a variety of innovative approaches to the current tort system for medical malpractice liability. One such approach is to apply the concept of no-fault liability to medical practice. States such as Virginia and Florida have already adopted a limited version of such a concept. This article examines the problems of the current tort system, different types of no-fault medical insurance alternatives and their advantages, and the experiences of the states of Virginia and Florida with their limited no-fault malpractice insurance systems. The author concludes that the concept of no-fault compensation for medical malpractice is a promising remedy. However, it is a medicine that will require more testing before it can be pronounced a cure for the disease that plagues the current system.

Addressing the malpractice problem: the Robert Wood Johnson Foundation's programs.

Addressing the malpractice problem: the Robert Wood Johnson Foundation's programs.

Medical Injury Compensation A Time for Testing New Approaches

Despite an improved climate for professional liability insurance, medical injury compensation remains a subject of serious concern. The current tort system has been assailed as too slow, too costly, too complicated, and inconsistent in awards. Some critics assert that it induces overutilization through defensive medicine while limiting access by influencing physicians to forgo high-risk procedures or to shift to specialties with less liability exposure. Many medical practitioners also contend that it often stigmatizes physicians unfairly. Legislative reform in the 1970s and 1980s produced changes in the tort system in response to perceived crises arising from the increasing cost and diminishing availability of professional liability insurance. Because of limited understanding about the nature and dimensions of the problems at which they were directed, it was highly conjectural whether those remedies would effect anything close to a cure. Today's situation differs significantly. We now have a significant body of research, and such

Liability: perspectives and policy

The United States has recently witnessed an explosion of personal injury lawsuits involving medical malpractice, unsafe products, and widespread environmental hazards. Jury awards and out-of-court settlements have escalated in many cases to hundreds of thousands of dollars. At the same time, premiums for liability have skyrocketed. As a result, physicians have cut back services and some municipalities and businesses have been denied liability coverage altogether.Some experts claim that only fundamental of the nation's civil justice system will end this insurance crisis. But critics of such wholesale judicial contend that the industry has launced a reform campaign to cover its own past underwriting mistakes. Liability brings together economists and experts in liability law and the industry to assess the merits of the conflicting positions and to formulate sound public policy. Led by Robert Litan and Clifford Winston, the contributors describe the major changes that have contributed to the crunch and set forth a methodological framework for evaluating the debate over the current liability system.They conclude that increases in premiums and cutbacks in coverage have been real but selective; that the forces in the judicial system responsible for rising liability costs are not readily subject to change; and that we know too little about the cost and benefits of the current tort system to replace it with an alternative compensation program.

The Legal Perspective

Despite the many limitations to interpreting spontaneous adverse drug reaction (A DR) reports, including making causality judgments, ADR reports play a significant role in product liability lawsuits. Product liability is a rapidly growing issue for pharmaceutical manufacturers because recent judicial decisions have taken drug liability law beyond the traditional concepts of negligence and are approaching absolute liability, partly because many cases reveal a search for the “deep pocket.” A majority of cases center on the duty to warn of side effects and, more recently, the duty to warn about unknown side effects, a trend that could have deleterious consequences on pharmaceutical manufacturers. Examples are provided by experiences with cases involving vaccine liability, which rely on two major proofs of causation: (I) temporal association, an easily understood but flawed criterion when the alleged injury is either common in occurrence, or when it does not occur in thousands to millions of those exposed to a suspect agent; (2) epidemiologic studies, which are limited, particularly in retrospective analyses, by lack of conclusive evidence of causation versus group differences. The experience in this type of product liability suggests the need for alternatives to the current tort system. At present, however. a manufacturer can help diminish liability with programs directed to the major sources of liability -physical defects of the product and failure to warn. A detailed liability prevention plan is outlined, focusing on quality control, comprehensive ADR in formation management, and diligent training of the sales force.

Assigned shares in compensation for radiation-related cancers.

At the request of Congress, a Working Group of the National Institutes of Health prepared radioepidemiologic tables which estimate the likelihood that cancer victims previously exposed to a dose of radiation developed their cancer as a result of this exposure. The ultimate purpose of the tables is to provide a scientific basis for determining compensation for such victims, and their use would represent a marked departure from the current tort system for deciding compensation. The preparation of radioepidemiologic tables requires extensive mathematical modeling because matters such as sex, size of dose, age at exposure, type of cancer, and age at diagnosis must be taken into account. The limited data require many assumptions about the quantitative relationship between radiation dose and the age-specific incidence rate of cancer. After partitioning a population into reference sets based on age at exposure, size of dose, type of cancer, etc., an assigned share is computed for each reference set and then assigned to all of its members. The assigned share represents the fraction of the cancer cases in the reference set that are attributed to the radiation dose. Because the population can be partitioned in many ways, each individual's assigned share depends on the partition used and will change with different partitions. Options for modeling and limitations in epidemiologic data lead to considerable uncertainties in estimates of assigned shares that have been scientifically evaluated for the Working Group's tables. In contrast, the uncertainties associated with the current approach for determining the likelihood that a claimant's cancer was caused by radiation have not been appraised, but are likely to be even greater than those associated with the Working Group's tables. One issue is how to use such tables to compensate victims. Some among many possibilities are: to use them together with a compensation formula to determine the fraction of a standard award to be given; to use them as a starting value for the fraction, to be modified by an authority on the basis of additional information supplied by the claimant and defendant; and to use them as input to the present compensation system.