Noneconomic Damages Research Articles

Malpractice Risk and Cost Are Significantly Reduced after Tort Reform

Rising medical malpractice premiums have reached a crisis point in many areas of the United States. In 2003 the Texas legislature passed a comprehensive package of tort reform laws that included a cap at $250,000 on noneconomic damages in most medical malpractice cases. We hypothesized that tort reform laws significantly reduce the risk of malpractice lawsuit in an academic medical center. We compared malpractice prevalence, incidence, and liability costs before and after comprehensive state tort reform measures were implemented. Two prospectively maintained institutional databases were used to calculate and characterize malpractice risk: a surgical operation database and a risk management and malpractice database. Risk groups were divided into pretort reform (1992 to 2004) and post-tort reform groups (2004 to the present). Operative procedures were included for elective, urgent, and emergency general surgery procedures. During the study period, 98,513 general surgical procedures were performed. A total of 28 lawsuits (25 pre-reform, 3 postreform) were filed, naming general surgery faculty or residents. The prevalence of lawsuits filed/100,000 procedures performed is as follows: before reform, 40 lawsuits/100,000 procedures, and after reform, 8 lawsuits/100,000 procedures (p < 0.01, relative risk 0.21 [95% CI 0.063 to 0.62]). Virtually all of the liability and defense cost was in the pretort reform period: $595,000/year versus $515/year in the postreform group (p < 0.01). Implementation of comprehensive tort reform in Texas was associated with a significant decrease in the prevalence and cost of surgical malpractice lawsuits at one academic medical center.

Table of Contents

Abstract Cover Story Understand what ‘credit‐hour’ definition means for your policies Prepare to comply with credit‐hour definition for brick‐and‐mortar, online classes Review objections to federal credit‐hour definition News &amp; Notes ACE, 60 other groups ask ED to rescind state authorization regs House votes on education cuts, nonfunding of gainful employment U of Louisiana System recommends programs for termination Students want Charlie Sheen to be commencement speaker Compliance Know rules for disclosing registered sex offender status Retention Retain adult learners with these 12 strategies Tools of the Trade Make sure your unit's Web page e‐readers are accessible Compliance Ensure compliance with accessibility requirements Professional Development Manage conflict effectively to keep students, staff happy Enlist faculty members to create conflict‐resolution system Ethics How do you address grade inflation? Lawsuits &amp; Rulings ADMISSIONS Fifth Circuit upholds state university's race‐conscious admissions SEXUAL HARASSMENT Appeals court revives students' sexual harassment suit ACADEMIC AFFAIRS Court OKs noneconomic damages in race discrimination claim Leaders &amp; Innovators NICHOLE A. MANCONE, REGISTRAR, UNIVERSITY OF NORTH TEXAS AT DALLAS Envision office you would create from scratch Consider elements of an ideal office

Administration Defends LTC in Reform Fight

Administration Defends LTC in Reform Fight

Law &amp; Psychiatry: Reforming Malpractice: The Prospects for Change

Previous efforts to change the U.S. medical malpractice system have involved such initiatives as time limits on filing claims, caps on noneconomic damages, and limiting attorneys' fees. This column briefly reviews such past efforts and describes several new approaches. They include programs that encourage prompt disclosure of errors and offers of compensation, efforts to mediate complaints outside the courts, and use of administrative processes to adjudicate claims. "No-fault" systems, such as those in New Zealand, Sweden, and Denmark, may be most likely to satisfy the interests of both patients and physicians but may not be politically acceptable in the United States.

Reforming Malpractice: The Prospects for Change

Previous efforts to change the U.S. medical malpractice system have involved such initiatives as time limits on filing claims, caps on noneconomic damages, and limiting attorneys' fees. This column briefly reviews such past efforts and describes several new approaches. They include programs that encourage prompt disclosure of errors and offers of compensation, efforts to mediate complaints outside the courts, and use of administrative processes to adjudicate claims. “No-fault” systems, such as those in New Zealand, Sweden, and Denmark, may be most likely to satisfy the interests of both patients and physicians but may not be politically acceptable in the United States. (Psychiatric Services 62:6–8, 2011)

686: Primary cesarean delivery in the U.S.: the impact of noneconomic damages caps

686: Primary cesarean delivery in the U.S.: the impact of noneconomic damages caps

Parens Patriae Litigation to Redress Societal Damages from the BP Oil Spill: The Latest Stage in the Evolution of Crimtorts

ABSTRACT * The BP oil spill has led to some of the most complex legal dilemmas in Anglo-American history. This Article explores four mechanisms that claimants are using to seek compensation for damages caused by this unprecedented environmental disaster: (1) Torts; (2) Class Actions; (3) the Gulf Coast Claims Facility; and (4) Environmental Patens Patriae Actions. We argue that the government-initiated parens patriae actions are necessary to supplement, but not to supplant, the other three mechanisms in order to vindicate the larger societal injury. The patens patriae litigation may enable the Gulf States to recoup larger societal losses to their habitat, ecosystems, tax revenues, and tourism. This mechanism can potentially resolve the problem of aggregating valid claims by plaintiffs who cannot be certified as classes or who do not qualify under the Gulf Coast Claims Tribunal Guidelines. We classify environmental patens patriae as public crimtorts because government attorneys deploy private tort law to redress societal injuries. By contrast, in private crimtorts, trial lawyers receive punitive damages as a bounty for uncovering and prosecuting dangerous conditions and practices. Both public and private crimtorts require intermediate procedural protections to ensure that corporate defendants are treated fairly. Courts or legislatures will need to determine which intermediate protections best balance defendants' rights versus society's interests. I. INTRODUCTION: THE BP OIL CATASTROPHE II. PART I: CIVIL JUSTICE ALTERNATIVES FOR COMPENSATING THE BP OIL SPILL VICTIMS A. One-on-One Torts 1. The Case for Individualized Environmental Justice 2. Difficulties in Proving Causation in Environmental Torts 3. David v. Goliath Imbalance in Legal Resources a. The BP Corporate Family b. The Transocean Corporate Family c. The Halliburton Corporate Family d. The Andarko Corporate Family e. The Moex Offshore Corporate Family f. Cameron International Corporation g. Miscellaneous Additional Defendants 4. Environmental Torts Will Overwhelm the Civil Justice System B. The Gulf Coast Claims Facility (GCCF) 1. The Formation of the Gulf Coast Claims Facility 2. Advantages of the Gulf Coast Claims Facility 3. Concerns About the Gulf Coast Claims Facility a. Kenneth Feinberg: The $20 Billion Dollar Man b. The GCCF's Legitimacy and Transparency Limitations c. Controversial GCCF Proximate Cause Delimiters d. Exclusion of Noneconomic Damages as Tort Reform in Disguise e. The Abolition of the Collateral Source Rule f. The GCCF Does Not Compensate Societal Damages C. Class Actions Against Oil Industry Defendants 1. Advantages of Class Actions III. PART II: THE RESURRECTION OF PARENS PATRIAE FOR COLLECTIVE INJURIES A. The Gulf States' Parens Patriae Environmental Actions B. History of Parens Patriae 1. The Equitable Roots of Parens Patriae 2. Parens Patriae Exported to America 3. Injunctive Relief in Early Parens Patriae Environmental Cases C. The Modern Expansion of Parens Patriae D. The Metamorphosis of Public Nuisance 1. Public Nuisance in Tobacco Parens Patriae Actions 2. Public Nuisance in Environmental Parens Patriae Actions a. Show Me the Money: Parens Patriae Actions b. The Rise of Public Crimtorts 3. Alabama's Pioneering Environmental Parens Patriae Action 4. Louisiana's Declaratory Judgment Action 5. …

The Impact of Tort Reform on Employer-Sponsored Health Insurance Premiums

We evaluate the effect of tort reform on employer-sponsored health insurance premiums by exploiting state-level variation in the timing of reforms. Using a dataset of health plans representing over 10 million Americans annually between 1998 and 2006, we find that the most common set of tort reforms during this period reduces premiums of employer-sponsored self-insured health plans by 2.1%. Of the four individual reforms comprising this set, caps on noneconomic damages and collateral source reforms have the greatest impact. We do not find reductions in premiums for fully insured plans, which in our sample are almost entirely Health Maintenance Organizations (HMOs). Further analysis reveals that self-insured HMOs are also unresponsive to reforms. Taken together, these findings suggest that HMOs reduce ‘‘defensive medicine,’’ even absent reform. The results are the first direct evidence that tort reform reduces healthcare costs in aggregate; prior research has largely focused on particular medical conditions. (JEL I1, K3, K13, K20)

Health Reform Opponents May Undo MH Access Expansion

Health Reform Opponents May Undo MH Access Expansion

The unexpected effects of caps on non-economic damages

This paper focuses on the economic and legal implications of the enactment of caps on non-economic damages on conflicting parties who know that state supreme courts may strike down the caps as unconstitutional within a few years of enactment. We develop a simple screening model where parties have symmetric expectations regarding the probability of a strike down and asymmetric information regarding plaintiff's non-economic harm. Our model makes the following predictions: First, caps may increase the length required to resolve disputes if the caps are low enough or the probability of a strike down is large enough. Second, although caps always increase the percentage of disputes that are settled out of courts, they do not necessarily save litigation expenses. Third, when caps increase the length of dispute resolution, they also increase litigation expenses if and only if the settlement negotiation costs are neither too small nor too large. Fourth, while caps always reduce the recoveries of plaintiffs with large claims, caps may increase recoveries of plaintiffs with low claims compared to their recoveries in states with no caps. We end by discussing the robustness of the results.

Whither Suffering? The Potential Impact of Tort Reform on the Emotional and Existential Healing of Traumatically Injured Chronic Pain Patients

Approximately half of the state legislatures in the USA have enacted tort reform, generally focused on reducing noneconomic damages such as those awarded for pain and suffering of traumatically injured parties. Traumatic injury has been empirically associated with the development of chronic pain, which in turn has been associated with the concept of human suffering. This analysis examines the meaning of suffering within the context of traumatically induced chronic pain, recognizing that this population is at heightened risk of experiencing long-term emotional as well as physical pain. Factors contributing to profound suffering include the potential development of post-traumatic stress disorder, depression and anxiety, role/identity loss, maltreatment by a medical system generally inept in its management of chronic pain, and the negative manner in which personal injury victims are often treated by the legal system. While the American medical system struggles to identify suffering, the legal system—through tort reform—has chosen to simply ignore it, demonstrating little concern for the integrity of the vulnerable chronic pain sufferer. In doing so, the “destructed” chronic painient is further “deconstructed”. We argue that by limiting the size of settlements and jury awards, tort reform serves to potentially deny personal injury victims of a critical vehicle for finding meaning in their suffering, and accordingly limits their likelihood of achieving relief.

Defensive Medicine Under Enterprise Insurance: Do Physicians Practice Defensive Medicine, and Can Enterprise Insurance Mitigate its Effect?

Current tort reforms cap awards for non-economic damages or make it difficult for plaintiffs to prevail in court. One of the justifications for these reforms is the high cost of positive defensive medicine, defined as physicians ordering more services than a stylized optimal level of care in order to minimize legal risks. However, the extent – and even existence – of defensive medicine is the subject of intense debate. Using comprehensive claims data from Taiwan, this paper contributes to the literature by credibly establishing a causal link between increased malpractice liability and the practice of defensive medicine in obstetrics. Moreover, back-of-the-envelope calculations indicate that the cost of defensive medicine is small, or approximately 0.3% of total health spending in obstetrics. The results of my empirical investigation also suggest that various institutional and legal factors can enhance or mitigate the effect of defensive medicine. In particular, my paper provides empirical support that enterprise insurance, or malpractice insurance purchased at the enterprise rather than the individual physician level, can mitigate the practice of defensive medicine.

Demonstrations Sub for Medical Liability Reform

Demonstrations Sub for Medical Liability Reform

Sentencia 577/2009 de 14 de octubre de 2009, Audiencia Provincial de Valencia, sección 11ª

The veterinarian malpractice represents a breach of the service contract. When the victim is a companion animal, economic and non-economic damages should be recoverable. Spanish case law admits the indemnity for non-economic damages derived from a non-performance of the contract. This is the sense of the case that the writer comments.

Defensive Medicine and Tort Reform: A Wide View

Defensive Medicine and Tort Reform: A Wide View

“It is no longer viable from a practical and business standpoint”: damage caps, “hidden victims”, and the declining interest in medical malpractice cases

This article investigates two propositions concerning the effects of a key tort reform measure in the United States – non-economic damage (i.e., pain and suffering) caps in medical malpractice cases. The first says plaintiffs' lawyers, who rely on contingency fees, will stop representing certain clients in such cases. The second goes farther, saying lawyers will handle fewer malpractice cases generally. Using survey and interview data from plaintiffs' lawyers in Texas, the article presents strong evidence for both propositions. In doing so, it provides an excellent illustration of the theoretical idea of plaintiffs' lawyers as rational actors constantly adjusting their practices – their businesses – to changes in their working environment. The findings show how a cap on non-economic damages affects the practices of plaintiffs' lawyers by limiting damages to a degree that significantly alters the incentive structure that lies at the heart of the contingency fee system.

First‐Party Versus Third‐Party Compensation for Automobile Accidents: Evidence From Canada

AbstractInsurance regimes for compensating losses arising from automobile accidents vary by jurisdiction, ranging from a pure tort system to a pure no‐fault system, with both systems having well‐documented benefits and costs. The majority of published research focuses on the benefits and costs associated with the compensation for bodily injury. This article extends the existing literature by examining the differences between first‐party and third‐party recovery for both physical damage and bodily injury losses in Canada. Our comparison of auto insurance costs per insured vehicle suggests that government‐run, pure no‐fault provinces have lower average costs than provinces with private tort and modified no‐fault. Lower costs arise from the elimination of tort costs associated with noneconomic damages, lower claims settlement costs due to first‐party compensation, and scales of economy arising from monopoly power. The second goal of the article is to examine the impact of first‐ versus third‐party compensation on the settlement of property damage claims. We analyze the claim files of a large insurer that operates within both a traditional tort (third‐party) environment and a first‐party recovery environment for property damage. We find that in a first‐party recovery regime claims are settled sooner, settlement costs are lower, and not‐at‐fault drivers are compensated at a higher rate than in the traditional tort environment.

Solving the Medical Malpractice Crisis

The medical malpractice crisis has smoldered for many years with few new ideas regarding how to improve matters. Physicians promote limits on plaintiff noneconomic damages, but this has been ferociously resisted by the legal community. They argue that limiting remuneration to patients harmed by negligent practices is fundamentally wrong. We hypothesize that malpractice litigation is out of control because of an excessively lax evidence standard. Raising the evidence standard from the current "more likely than not" to "clear and convincing" would sharply reduce medical malpractice judgments against physicians. Clear and convincing is an evidence standard currently in use by courts for certain cases, and its adoption for malpractice litigation would not limit compensation for injuries resulting from negligent practices and should be well received by the legal community.

Was Vital Component Omitted From Health Care Reform?

Back to table of contents Previous article Next article Government NewsFull AccessWas Vital Component Omitted From Health Care Reform?Rich DalyRich DalySearch for more papers by this authorPublished Online:5 Feb 2010https://doi.org/10.1176/pn.45.3.psychnews_45_3_010AbstractThe use of defensive medicine—long dismissed as a myth by some lawyer groups—is a major driver of medical costs, and efforts to reduce the practice through tort reform could yield billions of dollars in health care savings, a recent analysis by the nonpartisan Congressional Budget Office (CBO) concluded.The report was released last December in follow-up to an initial report in October 2009 on tort-reform legislative proposals. Although the report did not use the term “defensive medicine,” it described the impact of clinicians ordering more tests or procedures than are necessary solely to protect themselves from lawsuits.The CBO researchers concluded that medical-liability reform proposals at the federal level would save at least $54 billion over 10 years, in part by reducing the need for physicians to use defensive medicine.Lisa Rickard, president of the U.S. Chamber Institute for Legal Reform, called the finding on cost savings “momentous.”“Neglecting to include medical liability reform [in the health care overhaul] benefits only the plaintiffs' lawyers,” stated Pickard in a written statement. “Including it benefits every American participating in our health care system.”Advocates for tort reform contend that the CBO estimate of cost savings from such legislation is likely an underestimate. Previous studies have concluded that the real cost of defensive medicine is between $151 billion and $210 billion annually. That cost could be reduced or eliminated, they maintain, through reforms such as caps on noneconomic damages and the creation of protections from lawsuits for physicians who utilize best medical practices.President Obama spoke positively in the summer of 2009 about the incorporation of legal protections for physicians who adhere to best-practice guidelines within health care reform, although he rejected caps on noneconomic damages that former President George W. Bush supported. However, Democratic leaders in Congress have kept nearly all tort-reform proposals out of the health care reform legislation. For example, Democrats in the Senate rejected an amendment to the health reform bill by Sen. John Ensign (R-Nev.) that would have established caps on noneconomic damages.“The whole premise of a medical malpractice ‘crisis’ is unfounded,” said Senate Majority Leader Harry Reid (D-Nev.) in a frequently cited Senate floor speech on tort reform in 2006.Likewise, trial-lawyer advocates have minimized the impact and even the existence of defensive medicine as a response to the threat of lawsuits.“To the extent that defensive medicine does exist, research has found that the motivation behind it is not liability but rather a desire to simply help a patient or, in some cases, boost physician income,” according to a statement by the American Association for Justice, a national attorney advocacy group.Conversely, physician groups—including APA—have advocated for the inclusion of tort-reform provisions within the health care overhaul effort as an important way to reduce the rise of ever-increasing health care costs.While the cost of malpractice insurance for psychiatrists ranks among the lowest in medicine, the price is still high: the average psychiatrist malpractice policy costs over $6,000 each year, according to a leading psychiatrist insurer.The CBO tort reform analysis is posted at <www.cbo.gov/ftpdocs/108xx/doc10872/12-29-Tort_Reform-Braley.pdf>. ISSUES NewArchived

The Unexpected Effects of Caps on Non-Economic Damages

This paper focuses on the economic and legal implications of the enactment of caps on non-economic damages on conflicting parties who know that state supreme courts may strike down the caps as unconstitutional within a few years of enactment. We develop a simple screening model where parties have symmetric expectations regarding the probability of a strike down and asymmetric information regarding plaintiff’s non-economic harm. Our model makes the following predictions: First, caps may increase the length required to resolve disputes if the caps are low enough or the probability of a strike down is large enough. Second, although caps always increase the percentage of disputes that are settled out of courts, they do not necessarily save litigation expenses. Third, when caps increase the length of dispute resolution, they also increase litigation expenses if and only if the settlement negotiation costs are neither too small nor too large. Fourth, while caps always reduce the recoveries of plaintiffs with large claims, caps may increase recoveries of plaintiffs with low claims compared to their recoveries in states with no caps. We end by discussing the robustness of the results.