Damage Caps Research Articles

A comparative analysis of hungarian and american medical liability: examining medical malpractice in justice

In recent years, medical liability and medical malpractice lawsuits have gained particular importance in the field of law. They have a great influence on trust in medicine and the entire health care system, so their knowledge and understanding are indispensable. The purpose of my essay is to present and compare the Hungarian and American medical liability systems with a particular focus on medical malpractice and its impact on the pursuit of justice. I will light out that the Hungarian and the American legal frameworks concerning medical liability differ in several aspects, including the burden of proof, statutes of limitations, damage caps, and compensation mechanisms. By comparing and contrasting these two distinct contexts, i would like to show the strengths and weaknesses of each system and identify potential areas for improvement. Potential improvements may include clearer guidelines for determining medical malpractice, establishing specialist medical malpractice courts, incentivizing early settlement, and evaluating the need for limitation on damages. In conclusion, this essay presents an analysis of the medical liability systems in Hungary and the United States, focusing on medical malpractice. Through a comparative examination I would like to point out the need for reform to ensure justice for patients while protecting the healthcare profession. By learning from one another, both countries have the potential to enhance their respective medical liability systems and provide better avenues for resolving medical malpractice claims.

Who Is a Health Care Provider?: Statutory Interpretation as a Middle-Ground Approach to Medical Malpractice Damage Caps.

Debates over the effectiveness, constitutionality, and fairness of medical malpractice damage caps are as old as the laws themselves. Though some courts have struck down damage caps under state constitutional provisions, the vast majority hesitate to invalidate malpractice reform legislation. Instead, statutory interpretation offers a non-constitutional method of challenging the broad scope of damage caps without fully invalidating legislative efforts to curtail "excessive" malpractice liability. This Note examines the term "health care providers" in construing malpractice reform laws and identifies two predominant forms of statutory interpretation that state courts apply. In doing so, this Note offers recommendations for courts and legislatures to best balance the goals of the malpractice reform movement with patients' interests in recovery for medical injuries.

The Impact of Malpractice Damage Caps on C-section Rates and Alternative Approaches.

About half of the states in the United States have had noneconomic damage caps in place for at least 8 years. National aggregate data shows that women are just as likely to give birth by cesarean section (C-section) in states with damage caps as in ones without. For the most recent year studied, the national C-section rate for births in states with damage caps was 33.04% compared with a 32.10% ratefor births in states without caps. Other initiatives (malpractice insurance reform, accessible public disclosure of hospital C-section rates, and improved compensation for vaginal delivery) should be considered to reduce C-section rates.

Damage Caps and Defensive Medicine: Reexamination with Patient‐Level Data

Damage Caps and Defensive Medicine: Reexamination with Patient‐Level Data

Optimal cap on claim settlements based on social benefit maximization

Caps on damages constitute one of the proposed reforms of the tort system, especially in the U.S. In this paper, we establish models to capture both the claimant's and the insurer's behaviors under a system whereby damages are capped. We also establish an objective function of maximizing the social benefit, expressed as the sum of claimant and insurer benefits. We examine the optimal upper limit that balances both claimant and insurer benefits. Our model implies that the optimal value of the upper limit should be the expected value of the random claim payment independent of the type of probability distribution the claim payment follows. Finally, we apply empirical data to our theory and arrive at an estimate of the optimal damage cap.

Do noneconomic damage caps reduce medical malpractice insurance premiums? Evidence from North Carolina

AbstractThe impact of medical malpractice reforms, especially caps on noneconomic damages, is of special interest to policymakers and physicians. Adopting such caps has become rare during the past decade, and most existing analyses study state reforms occurring during periods of dramatic rises in malpractice insurance rates. This study contributes to the literature by examining how caps implemented in noncrisis periods affect malpractice premiums. It examines the effect of the 2011 North Carolina's adoption of a noneconomic damages cap by comparing county‐level malpractice premiums for three specialties between North Carolina and states without caps both before and after the reform. It finds little evidence of pre‐existing trends, followed by a lagged but significant reduction in premiums for each of the studied specialties in North Carolina. The timing and size of the effects are comparable to findings from the literature studying malpractice reforms passed during times of more dramatic liability trends.

The Differential Effects of Malpractice Reform: Defensive Medicine in Obstetrics

Abstract Recent studies argue that different types of patients are affected differently by changes in malpractice pressure. We argue that defensive medicine causes these differential effects. Our theoretical model predicts that reduced malpractice pressure decreases health care spending among patients with good access to care, but increases spending among those with poor access. We test this theory by estimating the effects of tort reforms on birth by cesarean section. Reduced malpractice pressure through collateral source rule reform decreases C-section rates by 4.75% for mothers with timely initiation of prenatal care. On the other hand, reduced pressure through noneconomic damages caps increase C-section rates by 7.59% for mothers without timely initiation. These findings are consistent with defensive medicine. Further investigation suggests that reduced pressure improves access to care for vulnerable populations and reduces utilization among well-served consumers. These findings explain the literature’s conflicting assessments of defensive medicine, despite its practice being widespread.

Reform of Qualified Immunity for Police Officers: A Pathway to Legislative Reform

Qualified immunity for police officers in the United States is a broken legal doctrine that needs Congressional legislative remedy; however, police qualified immunity does not need to be eliminated. It must be reformed. Over the past 4 months of diligent and focused research, analysis, and scrutiny from diversely experienced policing officials, criminal and civil law attorneys, academicians, and community leaders, the Institute for American Police Reform has identified a fair and pragmatic standard for reforming qualified immunity. Although this White Paper discusses reform at the federal level, reform of qualified immunity for police officers should also occur at the state level and indeed, already has in several states. State level reform can include additional levers such as damage caps, indemnification policies, insurance requirements, or fee-shifting.

Pharmaceutical Product Liability, Litigation Regimes, and the Propensity to Patent: An Empirical Firm-Level Investigation

Do different pharmaceutical product liability regimes in different countries induce propensity to patent? We exploit the variation in pharmaceutical liability and litigation rules across firms in the pharmaceutical industry and countries to explain the firm-level propensity to patent. Drawing on a large dataset from European Patent Office (EPO) covering over 9,950 pharmaceutical patents from 63 countries over the period 1991–2015, we compute the conditional probabilities of individual pharmaceutical firms to acquire a valid-based patent on the validation outcomes and examine whether different liability regimes encourage or deter firm-level propensity to patent. Our empirical strategy addresses firm-level idiosyncrasies, country-level unobserved effects, and common technology shocks that potentially invoke omitted variable bias in the effects of liability regimes on the propensity to patent. Our investigation reveals that liability regimes combined with damage caps, broad statutory excuses, and reversed burden of proof have a strong positive effect on the firm-level patent stock and a negative effect upon EPO patent validation rate. The evidence suggests that not all liability rules and related litigation procedures are created equal. Firms are systematically more likely to hold (firm-level patent stock) valid patents at the EPO when the liability and litigation rules are not complex and when the damage cap, broad statutory excuses, and reversed burden of proof are introduced.

Unintended Consequences of Products Liability: Evidence from the Pharmaceutical Market*

Abstract We explain a surprising effect of tort liability in the market for prescription drugs. Greater punitive damage risk seems to increase prescription drug utilization in states without non-economic damage caps but decrease utilization in states with such caps. We offer an explanation for this puzzle. The vertical production process for drugs involves national upstream producers (drug companies) and local downstream producers (doctors). When a single state reallocates liability from downstream to upstream producers, national drug companies see little reason to alter their nationwide output decisions, but local physicians have incentives to increase their prescriptions in that state. The net result is higher local output. We show how this dynamic can explain our puzzle by demonstrating that punitive damages shift liability upstream from doctors to drug companies, but not when non-economic damages caps limit physician malpractice liability. We provide evidence explaining when, how, and why this type of liability shifting occurs (JEL K13, I11, I18).

Status of current medicolegal reform in the United States: a neurosurgical perspective.

There are approximately 85,000 lawsuits filed against medical practitioners every year in the US. Among these lawsuits, neurosurgery has been identified as a "high-risk specialty" with exceptional chance of having medical malpractice suits filed. Major issues affecting the overall medicolegal environment include tort reform, the formation of medical review panels, the increasing practice of defensive medicine, and the rising costs of medical insurance. In this study, the authors provide a concise update of the current medicolegal environments of the 50 states and provide a general guide to favorable and unfavorable states in which to practice neurosurgery. Data were acquired related to state-by-state medical review panel status, noneconomic damage caps, economic damage caps, and civil suit filing fees. States were placed into 5 categories based on the status of their current medicolegal environment. Of the 50 states in the US, 18 have established a medical review panel process. Fifteen states have a mandatory medical review process, whereas 3 states rely on a voluntary process. Thirty-five states have tort reform and have placed a cap on noneconomic damages. These caps range from $250,000 to $2,350,000, with the median cap of $465,900. Only 8 states have placed a cap on total economic damages. These caps range from $500,000 to $2,350,000, with the median cap of $1,050,000. All states have a filing fee for a medical malpractice lawsuit. These costs range from $37 to $884, with the median cost for filing of $335. Medicolegal healthcare reform will continue to play a vital role in physicians' lives. It will dictate if physicians may practice proactively or be forced to act defensively. With medicolegal reform varying greatly among states, it will ultimately dictate if physicians move into or away from certain states and thus guide the availability of healthcare services. A desirable legal system for neurosurgeons, including caps on economic and noneconomic damages and availability of medical review panels, can lead to safer practice.

The effects of medical malpractice tort reform on physician supply an analysis of legislative changes from 2009 to 2016

AbstractAdvocates of tort reform blame medical malpractice lawsuits for rising healthcare costs, prompting politicians in some states to pass tort reform capping noneconomic damages. In this analysis, I examine the effects of caps on noneconomic damages between 2009 and 2016 on the supply of physicians. I use multiple model specifications, examine physicians in high‐risk specialties, young physicians, and physicians in state‐border counties, and explore the potential for asymmetric effects using instances where tort reform has been declared unconstitutional and removed. I find few statistically significant effects. Supplemental analyses show that this may be because the noneconomic damage caps do not significantly affect malpractice insurance premiums, payouts, or claims in the first place.

The Impact of Medical Malpractice Reforms

This article evaluates the effects of medical malpractice reform on claiming, malpractice premiums, physician supply, and defensive medicine. We conclude that damage caps materially reduce claim frequency, payouts per claim, and total payouts. The effects of damage caps on malpractice premiums, physician supply, and defensive medicine are more modest. It is difficult to quantify the impact of reforms other than damage caps—partly because reforms are typically adopted as a package deal, and partly because of the limitations of the available data. We close by identifying three areas that would benefit from more research.

Reducing Medical Malpractice Loss Reserve Volatility Through Tort Reform

This study examines how tort reform affects uncertainty in insurance markets by testing whether noneconomic damage caps influence reserving volatility for medical malpractice insurers. Using a panel of insurers from 1986 to 2009, we estimate the determinants of loss reserve error volatility and focus on how this volatility is influenced by the percent of premiums an insurer writes that are subject to noneconomic damage caps. We find empirical evidence that tort reform reduces reserve volatility over the subsequent 3- and 5-year periods, consistent with tort reform improving insurers’ loss forecasting ability. Our findings address outcomes of tort reform that are prominent concerns of legislators, regulators, and policyholders. This article contributes both to the literature examining the insurance market effects of tort reform and to the literature examining loss reserving practices.

Pharmaceutical Product Liability and the Propensity to Patent: An Empirical Firm-Level Investigation

Do different pharmaceutical product liability regimes in different countries induce innovation or can they lead to potentially socially undesirable outcomes? We exploit the variation in pharmaceutical liability and litigation rules across firms in pharmaceutical industry and countries to explain the firm-level propensity to innovate. Drawing on a large dataset from European Patent Office (EPO) covering over 9.950 pharmaceutical patents from 63 countries over the period 1991-2015, we compute the conditional probabilities of individual pharmaceutical firms to acquire a valid based patent on the validation outcomes and examine whether different liability regimes encourage or deter firm-level innovation. Our empirical strategy addresses firm-level idiosyncrasies, country-level unobserved effects and common technology shocks that potentially invoke omitted variable bias in the effects of liability regimes on the propensity to patent. Our investigation reveals that liability regimes combined with damage caps, broad statutory excuses and reversed burden of proof have a strong positive effect on the firm-level patent stock and a negative effect upon EPO patent validation rate. The evidence suggests that not all liability rules and related litigation procedures are created equal. Firms are systematically more likely to hold valid patents at the EPO when the liability and litigation rules are not complex and when the damage cap, broad statutory excuses and reversed burden of proof are introduced.

Civil Rights Ecosystems

The Philadelphia and Houston Police Departments are similarly sized, but over a recent two-year period, ten times more civil rights suits were filed against Philadelphia and its officers than were filed against Houston and its officers. Plaintiffs in cases brought against Philadelphia and its officers were awarded one hundred times more in settlements and judgments. What accounts for these differences? Although the frequency and severity of misconduct and injury may play some role, I contend that the volume and outcome of civil rights litigation against any given jurisdiction should be understood as a product of what I call its civil rights ecosystem. Scientists define ecosystems as communities of living and nonliving elements that are interconnected and interactive. I define civil rights ecosystems as collections of actors (including plaintiffs’ attorneys, state and federal judges, state and federal juries, and defense counsel), legal rules and remedies (including state tort law, § 1983 doctrine and defenses, and damages caps), and informal practices (including litigation, settlement, and indemnification decisions) that are similarly interconnected and interactive. Variation in different aspects of a civil rights ecosystem determines the frequency with which claims against government are brought, the frequency with which those claims are successful, and the magnitude of their success. In this Article, I describe some key elements of civil rights ecosystems and the ways in which these elements interact, wide variation in civil rights ecosystems across the country, and ecosystem feedback loops that can magnify regional variation. Throughout, I illustrate aspects of this framework with examples drawn from an original dataset of almost 1,200 police misconduct cases filed in five federal districts around the country and surveys and interviews of dozens of attorneys who represented plaintiffs in these cases. Finally, I consider the implications of these observations. Understanding civil rights filings and payouts as the product of civil rights ecosystems reveals significant conceptual gaps in § 1983 doctrine and scholarly debate about the relationship between constitutional rights and remedies; raises important questions about the mechanics and desirability of regional variation in constitutional protections; and offers insights valuable for courts, advocates, and government officials seeking to change the scope and success of suits to enforce civil rights.

Civil Rights Ecosystems

The Philadelphia and Houston Police Departments are similarly sized, but over a recent two-year period, ten times more civil rights suits were filed against Philadelphia and its officers than were filed against Houston and its officers. Plaintiffs in cases brought against Philadelphia and its officers were awarded 100 times more in settlements and judgments. What accounts for these differences? Although the frequency and severity of misconduct and injury may play some role, I contend that the volume and outcome of civil rights litigation against any given jurisdiction should be understood as a product of what I call its civil rights ecosystem. Scientists define ecosystems as communities of living and nonliving elements that are interconnected and interactive. I define civil rights ecosystems as collections of actors—including plaintiffs’ attorneys, state and federal judges, state and federal juries, and defense counsel—and legal rules and remedies—including state tort law, Section 1983 doctrine and defenses, damages caps, and indemnification policies—that are similarly interconnected and interactive. Variation in different aspects of a civil rights ecosystem determines the frequency with which claims against government are brought, the frequency with which those claims are successful, and the magnitude of their success. In this Article, I describe some key elements of civil rights ecosystems and the ways in which these elements interact; wide variation in civil rights ecosystems across the country; and ecosystem feedback loops that can magnify regional variation. Throughout, I illustrate aspects of this framework with examples drawn from an original dataset of almost 1200 civil rights cases filed in five federal districts around the country and surveys and interviews of dozens of plaintiffs’ attorneys who represented plaintiffs in these cases. Finally, I consider the implications of these observations. Understanding civil rights filings and payouts as the product of civil rights ecosystems reveals significant conceptual gaps in Section 1983 doctrine and scholarly debate about the relationship between constitutional rights and remedies, raises important questions about the mechanics and desirability of regional variation in constitutional protections, and offers insights valuable for courts, advocates, and government officials seeking to change the scope and success of suits to enforce civil rights.

Concrete constitutive models for low velocity impact simulations

Concrete structures are commonly exposed to low velocity impact loads originating from windborne/waterborne debris, vehicle/vessel collision, and rock fall. For the performance assessment of concrete structures under such loads, several constitutive models have been developed to date. To compare the accuracy of the available models for practical applications, the current study evaluates four constitutive models, i.e., continuous surface cap model (CSCM), elasto-plastic damage cap (EPDC) model, Karagozian and Case concrete (KCC) model, and Winfrith concrete model. For this purpose, the constitutive models are first examined at the material level through single element simulations under basic stress paths, such as uniaxial compression and tension, as well as triaxial compression. A range of measures, such as post-peak softening, shear dilation, and confinement effect, are extracted and compared. The investigation is then extended to understand how the concrete constitutive models perform at the structure level. This is achieved by replicating drop hammer tests on reinforced concrete (RC) and concrete filled steel tube (CFST) beams. Investigation of these two structural categories provides a unique opportunity to further evaluate the accuracy of the concrete constitutive models in interaction with the most common reinforcement details. To achieve this goal, the impact responses of RC and CFST beams are compared with full-scale experimental test data. Upon understanding the capabilities of each constitutive model in predicting the structural behavior and damage, the most important modeling parameters are examined. The outcome of this study facilitates the selection and use of concrete constitutive models for the design and assessment of concrete structures subjected to various low velocity impact loads.

Rethinking the Obvious: Time for New Ideas on Medical Malpractice Tort Reform.

States have engaged in medical malpractice litigation reforms over the past 30 years to reduce malpractice insurance premiums, increase the supply of physicians, reduce the cost of health care, and increase efficiency. These reforms have included caps on noneconomic damages and legal procedural changes. Despite these reforms, health care costs in the United States remain among the highest in the world, provider shortages remain, and defensive medicine practices persist. The purpose of this study was to determine how successful traditional medical malpractice reforms have been at controlling medical costs, decreasing defensive medicine practices, lowering malpractice premiums, and reducing the frequency of medical malpractice litigation. Research has shown that direct reforms and aggressive damage caps have had the most significant impact on lowering malpractice premiums and increasing physician supply. Out of the metrics that were improved by malpractice reforms, similar improvements were shown because of quality reform measures. While traditional tort reforms have shown some targeted improvement, large-scale, system-wide change has not been realized, and thus it is time to consider alternative reforms.

Healthism in Tort Law

This article draws on the author's recently published book, Healthism: Health Status Discrimination and the Law (with Jessica L. Roberts) (Cambridge University Press 2018), examining tort law doctrine and policy for examples of differential treatment of health status or behaviors. Just as scholars previously have drawn attention to discrimination based on race, sex, age, and other protected categories in tort law, the article urges similar examination of tort law's potential to discriminate against the unhealthy. The article discusses the potential for healthism in the reasonably prudent person standard of care, contributory negligence, assumption of the risk, noneconomic damages caps, impaired driver and physician cases, failure to mitigate, intentional infliction of emotional distress, and other tort law rules. It concludes by applying the book's decisional rubric for distinguishing between permissible and impermissible health status differentiation to specific examples from tort law.