Noneconomic Damages Research Articles

Loss and damage in the IPCC Fifth Assessment Report (Working Group II): a text-mining analysis

ABSTRACT ‘Losses and damages’ refer to impacts of climate change that have not been, or cannot be, avoided through mitigation and adaptation efforts. After the establishment of the Warsaw International Mechanism for Loss and Damage (WIM), Loss and Damage is now considered the third pillar – besides mitigation and adaptation – of climate action under the United Nations Framework Convention on Climate Change (UNFCCC). This paper studies what the Contribution of Working Group II to the Fifth Assessment Report of the Intergovernmental Panel on Climate Change (IPCC WGII AR5) has to say about this emerging topic. We use qualitative data analysis software (text mining) to assess which climatic stressors, impact sectors and regions the report primarily associates with losses and damages, and compare this with the focus areas of the WIM. The study reveals that IPCC WGII AR5 primarily associates losses and damages with extreme weather events and economic impacts, and treats it primarily as a future risk. Present-day losses and damages from slow-onset processes and non-economic losses receive much less attention. Also, surprisingly, AR5 has more to say about losses and damages in high-income regions than in regions that are most at risk, such as small island states and least developed countries. The paper concludes with recommendations to the IPCC for its 6th Assessment Report (AR6) to include more evidence on losses and damages from slow-onset processes, non-economic losses and damages and losses and damages in vulnerable countries. Key policy insights IPCC WGII AR5 discusses evidence about losses and damages predominantly in relation to sudden-onset disasters and economic costs. More research is needed on losses and damages from slow-onset processes and non-economic loss and damage, particularly in vulnerable countries in the Global South. Funding agencies should support research in these areas and IPCC WGII AR6 should pay more attention to these topics. Losses and damages are not only a future risk, but already a present-day reality for vulnerable people in climate hotspots. People-centred research by social scientists is crucial for enhancing understanding of what losses and damages mean in the real world.

Removing Caps for Noneconomic Damages: The Kansas Experiment

In 2019 the Kansas Supreme Court ruled that caps on noneconomic damages in lawsuits of the sort that the state's legislature had put in place were unconstitutional. A preliminary look at the data and the experience of other states suggests that insurance costs will go up in the state. The success and feasibility of proposed legal changes in the state to ameliorate its impact are uncertain.

Predictive Analytics and Medical Malpractice

Insurance as a discipline has long embraced analytics, and market trends signal an even stronger relationship going forward. This article is a case study on the use of predictive analytics in the context of medical errors. Analyzing medical errors helps improve health care systems, and through a type of insurance known as medical malpractice insurance, we have the ability to analyze medical errors using data external to the health care system. In the spirit of modern analytics, this paper describes the application of data from several different sources. These sources give different insights into a specific problem facing the medical malpractice community familiar to actuaries: the relative importance of upper limits (or caps) on insurance payouts for noneconomic damages (e.g., pain and suffering). This topic is important to the industry in that many courts are considering the legality of such limitations. All stakeholders, including patients, physicians, hospitals, lawyers, and the general public, are interested in the implications of removing limitations on caps. This article demonstrates how we can use data and analytics to inform the many different stakeholders on this issue.

Insurance schemes for loss and damage: fools’ gold?

ABSTRACT Insurance schemes are a widely supported form of finance mechanism to address climate change-induced loss and damage, and are part of the Warsaw International Mechanism for Loss and Damage. This paper reviews active insurance schemes for loss and damage by exploring existing critiques. Novel insights into the fundamental challenges that insurance schemes face are then examined, in particular in the context of common but differentiated responsibilities and respective capabilities, intergenerational equity, economic and gender inequality, and human mobility. The analysis concludes that, despite their popularity among policy makers, insurance schemes seem ill-suited to address the full range of loss and damage. Therefore, pursuing these schemes, without backstopping from international finance, might undermine the objective of responding to loss and damage in a comprehensive manner. Consequently, it may be advisable for policy makers to consider how to overcome the apparent challenges in order to ‘insure the uninsurable’. Key policy insights Existing insurance schemes are ill-suited to fully respond to climate change loss and damage, given the increased frequency and severity of sudden onset events, slow onset events, and non-economic losses and damages. Insurance schemes fail to align with principles enshrined in the climate change regime, in particular the principle of common but differentiated responsibilities and respective capabilities (CBDR-RC) and intergenerational equity. Insurance products do not take economic inequality or gender considerations into account and loss and damage stemming from human mobility does not lend itself to insurance solutions as currently conceived, in certain circumstances. If insurance continues to be pursued as a response to loss and damage, it requires a major overhaul with innovative approaches. Policy makers must consider sourcing new and additional finance, reflecting the principle of CBDR-RC.

Addressing non-economic loss and damage associated with climatic events: Cases of Japan and Bangladesh

Addressing non-economic loss and damage associated with climatic events: Cases of Japan and Bangladesh

Non-economic loss and damage: lessons from displacement in the Caribbean

ABSTRACT Climate-induced displacement has direct implications for non-economic loss and damage, including threats to health and wellbeing and loss of culture and agency. Displacement due to extreme events is particularly challenging for small island developing states (SIDS) given their high exposure and vulnerability to tropical cyclones. Devastating hurricanes in the Caribbean in 2017 exposed non-economic loss and damage associated with prolonged displacement of entire island populations due to complete destruction of communities. Such was the case in Ragged Island, The Bahamas, where the entire population was displaced. This study assesses national policies, plans, legislation and reports from The Bahamas to determine non-economic loss and damage experienced by displaced residents and how the policy landscape addresses these issues. We find that non-economic loss and damage was acknowledged neither by the policy landscape nor by Government actions, but that there were likely health impacts and disruptions to sense of place and connection to the island. Failure to consider non-economic loss and damage also contributed to assessments that costs of rebuilding outweighed benefits. While existing literature has acknowledged policy deficiencies on loss and damage at the national level in SIDS, this study illustrates real-world impacts of these deficiencies. The case of Ragged Island highlights the need for SIDS to take the lead in developing national responses to loss and damage as they are currently experiencing severe impacts, which are intensified by the lack of clear policies, plans or strategies. Key policy insights Climate-induced displacement is linked to non-economic loss and damage, particularly when displacement is prolonged and due to extreme events. However, these impacts are rarely addressed in national policies, plans or strategies. National policies that address climate-induced displacement and non-economic loss and damage are critical in order to reduce impacts experienced by displaced communities and expand feasibility assessments of rebuilding to include more than economic considerations. SIDS are currently experiencing non-economic loss and damage and should take the lead in developing national policies and strategies to assess, address and report on these impacts, particularly those SIDS that rely on international funders for recovery and response to extreme events.

Medical Malpractice Appeals in a Civil Law System: Do Administrative and Civil Courts Award Noneconomic Damages Differently?

How do courts award noneconomic damages? Does it matter if the state is the defendant? This article addresses these questions in the context of medical malpractice appeals to the Spanish Supreme Court. Moreover, this study provides the first empirical analysis of the quantification of noneconomic damages in medical malpractice cases in administrative courts, where the state is the defendant, and in civil courts. This separation of jurisdictions is a common feature in civil law tradition countries. Yet, critics of this separation in general, and specialized courts in particular, argue that parties might be subject to different treatments and that similar cases might reach different outcomes, namely in terms of the quantification of damages. A consistent result of this paper is that no significant differences between noneconomic damages in civil and administrative appeals were found. The separation of jurisdictions does not necessarily imply that courts reach different outcomes, even when the state is the defendant. Citizens should not refrain from bringing their claims forward against the state, a more powerful party. In the current era of increasing juridification and judicialization of modern life (Ginsburg 2009; Hirschl 2006; Hirschl 2011), it is crucial for society that citizens and other parties litigating with the state are not disadvantageously treated.

The impact of tort reform on defensive medicine, quality of care, and physician supply: A systematic review.

To evaluate the impact of tort reform on defensive medicine, quality of care, and physician supply. Empirical, peer-reviewed English-language studies in the MEDLINE and HeinOnline databases that evaluated the association between tort reform and our study outcomes. We performed a systematic review in accordance with the PRISMA guidelines. Title and abstract screening was followed by full-text screening of relevant citations. We created evidence tables, grouped studies by outcome, and qualitatively compared the findings of included studies. We assigned a higher rating to study designs that controlled for unobservable sources of confounding. Thirty-seven studies met screening criteria. Caps on damages, collateral-source rule reform, and joint-and-several liability reform were the most common types of tort reform evaluated in the included studies. We found that caps on noneconomic damages were associated with a decrease in defensive medicine, increase in physician supply, and decrease in health care spending, but had no effect on quality of care. Other reform approaches did not have a clear or consistent impact on study outcomes. We conclude that traditional tort reform methods may not be sufficient for health reform and policy makers should evaluate and incorporate newer approaches.

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.

Damage Caps and Defensive Medicine: Reexamination with Patient-Level Data.

Physicians often claim that they practice "defensive medicine," including ordering extra imaging and laboratory tests, due to fear of malpractice liability. Caps on noneconomic damages are the principal proposed remedy. Do these caps in fact reduce testing, overall health-care spending, or both? We study the effects of "third-wave" damage caps, adopted in the 2000s, on specific areas that are expected to be sensitive to med mal risk: imaging rates, cardiac interventions, and lab and radiology spending, using patient-level data, with extensive fixed effects and patient-level covariates. We find heterogeneous effects. Rates for the principal imaging tests rise, as does Medicare Part B spending on laboratory and radiology tests. In contrast, cardiac intervention rates (left-heart catheterization, stenting, and bypass surgery) do not rise (and likely fall). We find some evidence that overall Medicare Part B rises, but variable results for Part A spending. We find no evidence that caps affect mortality.

Removal of Non-economic Damage Caps Is Not Associated with Reductions in Early Imaging for Low Back Pain.

Supporters of medical liability reform contend that caps on non-economic damages will decrease defensive medicine. We examined whether removal of caps on non-economic damages affect one type of defensive medical practice, early imaging for new-onset low back pain. Using administrative claims data, we retrospectively studied adult patients evaluated for new-onset low back pain from 2007 to 2012. We included patients from two states that had caps on non-economic damages struck down in 2010 (n = 462,604) and patients from adjacent states (n = 781,963). Using a difference-in-differences approach, we evaluated the impact of non-economic damage caps on early imaging while adjusting for physician specialty, patient characteristics, and year- and state-level fixed effects. There was no association between non-economic damage caps and early imaging for low back pain among all providers. Removal of a non-economic damage cap was also not associated with a significant change in early imaging within the two cap-removal states. Subgroup analysis by physician specialty demonstrated significantly increased use of early imaging for low back pain by orthopedic or neurological surgeons in the first 12months following cap removal in one state (but this difference did not persist beyond 12months). In the other cap-removal state, early imaging increased among orthopedic and neurological surgeons more than 12months after cap removal. We found no association between caps on non-economic damages and early imaging for low back pain among all physicians. However, our subgroup analysis suggests that physician specialties may respond to non-economic damage cap policies differently.

Addressing non-economic loss and damage associated with climatic events: Cases of Japan and Bangladesh

Non-economic loss and damage (NELD) could constitute a major proportion of the total loss and damage caused by any climate-related disasters. Despite this, most NELD has not been well measured and reported in most post-disaster reports and databases and has often not been given the attention it dese

Priority practices for addressing non-economic loss and damages caused by cyclones in Bangladesh

PurposeThis paper aims to identify and prioritize key non-economic loss and damages (NELDs) caused by the 2009 Cyclone Aila in Khulna District of Bangladesh and to identify appropriate practices to address the NELDs.Design/methodology/approachThe analytic hierarchy process was applied to prioritize key criteria, NELD indicators and practices that should be integrated into disaster risk reduction decisions at the local level.FindingsThe results showed the need for prioritizing NELDs at the local level, and especially for integrating into DRR policy and planning for addressing NELDs. The results indicated that the national disaster management plan could be enhanced to address issues related to inaccessible sanitation, waterborne diseases and mental disorders, and the school discontinuation.Research limitations/implicationsThe results are specific to Bangladesh. Readers may find them applicable to other similar country situations.Practical implicationsThe suggested risk reduction practices for addressing NELDs are effective for policymakers to prepare for the future extreme cyclone disasters.Social implicationsThe study identifies “compliance with societal value” as an important criterion for decision-making in the affected communities. Societal value can be a basis to determine effective practices to address the NELDs.Originality/valueTo the best of the authors’ knowledge, the study is the first ever effort to identify and prioritize NELDs of cyclones in the coastal areas of Bangladesh and therefore might have a greater implication for DRR policy of Bangladesh.

Beyond Physicians: The Effect of Licensing and Liability Laws on the Supply of Nurse Practitioners and Physician Assistants

The increased use of nurse practitioners (NPs) and physician assistants (PAs) represents an important option for increasing access to healthcare. I explore the effect of two types of laws on the supply of NPs and PAs: occupational licensing laws that limit the practices of NPs and PAs and caps on noneconomic damages. Relaxing licensing laws to allow NPs to practice with less physician oversight increases the supply of NPs in areas with few practicing physicians by 60 percent—though the size of this increase decreases as the supply of physicians grows. I find similar, but weaker, evidence for granting PAs more autonomy. Noneconomic damages caps increase the supply of both NPs and PAs by about 60 percent at the lowest levels of physician supply. Examining the effects of these laws on the prevalence of health professional shortage areas, I find that licensing laws have meaningful effects on access to care.

Us State Tort Liability Reform and Entrepreneurship

Tort and civil liability reform has been a hotly debated issue across US states. This has spawned a large theoretical and empirical academic literature that evaluates the implications of such reform and the impact that it can have on various aspects of an economy. This study adds to that literature by considering how various tort reforms affect entrepreneurial activity across states. The study employs the Database of State Tort Law Reforms (6th Edition) and utilizes the Kauffman Index of Entrepreneurial Activity between 1996 and 2016, finding that liability reform is generally positively associated with increased entrepreneurial activity. These results are largely driven by reforms to joint and several liability, caps on noneconomic damages, collateral source reform, and contingency fee reform.

Feasibility of a Health‐Utility Approach to Quantifying Noneconomic Losses from Personal Injury

There is wide agreement that existing approaches to valuing noneconomic losses from personal injury lack coherence. “Health‐utility” measurement—an approach developed in health economics for valuing health outcomes in public health and medicine—holds considerable promise for bringing greater rationality and consistency to assessments of injury‐related noneconomic loss. However, the feasibility of creating utility measures that are suitable for use in personal injury compensation has not been demonstrated. This study takes that step. We surveyed more than 4,100 members of the general public in Australia to assess people's preferences for a variety of nonfatal “health states.” The health states were selected to reflect harms commonly seen in claims to compensation schemes for transport and workplace accidents. We then followed established methods for transforming the survey responses into a “severity weight” for each health state. We show how these severity weights can be used to define tiers in a schedule for guiding noneconomic damages determinations. We also discuss the strengths and limitations of the approach, and consider implementation challenges.

Tort Reforms and the Gender Distribution of Physicians

Exploiting variation in tort laws at the state level, this paper finds empirical evidence of gender differences in responding to malpractice lawsuit liability by physicians. We find that a cap on non-economic damages increases female physicians’ relative representation in reform states by 1.297 percentage points (or 3.2 percent) among young physicians. This result is robust to the inclusion of state economic conditions, demographics, and the gender distribution of physicians by their state of birth, state of medical education, and state of residency training. No gender differences are found among physicians who are 35 years of age or older.

Financing loss and damage: reviewing options under the Warsaw International Mechanism

ABSTRACTAfter decades of pressure from vulnerable developing countries, the Warsaw International Mechanism on Loss and Damage (the WIM) was established at the nineteenth Conference of the Parties (COP 19) in 2013 to address costly damages from climate change. However, little progress has been made towards establishing a mechanism to fund loss and damage. The WIM's Executive Committee issued its first two-year workplan the following year at COP 20 which offered, among other things, a range of approaches to financing loss and damage programmes, which we review here. We provide brief overviews of each mechanism proposed by the WIM ExCom, describe their current applications, their statuses under the United Nations Framework Convention on Climate Change (UNFCCC), some of their advantages and disadvantages, and their current or potential application to loss and damage. We find that several of these mechanisms may be useful in supporting loss and damage programmes, but identify some key gaps. First, most of the mechanisms identified by the WIM ExCom are insurance schemes subsidized with voluntary contributions, which may not be adequate or reliable over time. Second, none were devised to apply to slow-onset events, or to non-economic losses and damages. That is, if harms are inflicted on parts of a society or its ecosystems that have no price, or if they occur gradually, they would probably not be covered by these mechanisms. Finally, the lack of a dedicated and adequate flow of finance to address the real loss and damage being experienced by vulnerable nations will require the use of innovative financial tools beyond those mentioned in the WIM ExCom workplan.Key policy insightsDespite a full article of the 2015 Paris Agreement devoted to loss and damage, there is little international agreement on the scope of loss and damage programmes, and especially how they would be funded and by whom.Most of the loss and damage funding mechanisms identified by the WIM ExCom are insurance schemes subsidized with voluntary contributions, which may burden the most vulnerable countries and may not be reliable over time.None of the mechanisms were devised to apply to slow-onset events, or to non-economic losses and damages.

Damage capitation in the modern liability climate: a primer for neurosurgeons and systematic review of the literature

OBJECTIVE Neurosurgery, and particularly spine surgery, is among the most highly litigated medical specialties in the US, rendering the current malpractice climate of primary importance to spine surgeons nationwide. One of the primary methods of tort reform in the civil justice system is malpractice damage capitation (or "caps"); however, its efficacy is widely debated. The purpose of this article is to serve as a review for the practicing neurosurgeon, with particular emphasis on short- and long-term effects of damage caps and on the current debate regarding their utility, based on a systematic review of the literature. METHODS The Meta-Analysis of Observational Studies in Epidemiology (MOOSE) guidelines for systematic review of observational studies were used in the design of the study. Multiple medical and legal online databases (MEDLINE, Scopus, EMBASE, and JSTOR) were queried using the key words "malpractice" and "damage capitation" for articles from 2000 to 2014. A total of 96 abstracts were screened for inclusion and exclusion criteria. Of these, 22 articles were reviewed in full and another 15 were excluded for study design or poor quality of data. Five more studies were added after cross-checking the bibliographies of the included articles. The resulting 12 articles were evaluated; relevant data were extracted using a standardized metric. RESULTS Five studies were found showing varying effects of capitation on physician availability, with only 1 of these specifically showing increased availability of neurosurgery and elective spine coverage in states with capitation. Four studies demonstrated that capitation overall succeeds in decreasing jury awards and frequency of claims filed. Last, 3 studies were found showing an overall decrease in malpractice premiums for states that passed damage capitation. CONCLUSIONS There is evidence in the literature showing that total and noneconomic damage capitation has the potential to improve the practice environment for neurosurgeons nationwide. Additionally, there are other factors that affect malpractice premium rates, such as the investment markets, which are not affected by these laws. All of these are important for spine surgeons to consider and be aware of in advocating for appropriate reform measures in their states.