Tort Reform Research Articles

Instrumental Comparative Tort Law

Abstract This article examines the possible uses of comparative tort law in practice and theory. It takes the view that comparative law is always a means, never an end in itself, explains how it can be utilized by judges, legislatures, and legal scholars, and puts forward important caveats and qualifications. Part 2 demonstrates the traditional role of comparative law in interpreting and implementing shared or similar tort doctrines and in providing ideas for domestic tort law gap-filling and reform. It highlights the challenges that such utilization might present. Part 3 maintains that comparative research is the cornerstone of unification endeavors. Starting with coordinated projects, Part 3 argues that unification is in itself an instrument (making comparative law a second-order instrument) and that it cannot be pursued without taking into account some concerns about its desirability and practicability. Part 3 then discusses uncoordinated unification processes, whereby lawmakers in one jurisdiction identify a “global consensus” and decide to join it, and elaborates on the normative and positive components of these strategies. Part 4 acknowledges that comparative analysis usually uncovers trans-jurisdictional diversity and argues that such findings can underlie normative and positive theories of tort law. A comparison can offer a systematic taxonomy of possible legal solutions to a particular problem, enabling scholars to critically evaluate and compare the alternatives from their preferred theoretical perspective. Moreover, any hypothesis about the impact of cultural, economic, political, technological, and other conditions and changes on the law can be substantiated or refuted through comparative analyses that seek out legal differences (or similarities) among systems with different (or similar) underlying backgrounds. Through this analysis, the article aims to reignite and enrich the debate and inspire tort-law makers and scholars to integrate comparative research into their work.

Jury Verdicts, Outcomes and Tort Reform Features of Malpractice Cases Involving Thoracic Outlet Syndrome (TOS)

Jury Verdicts, Outcomes and Tort Reform Features of Malpractice Cases Involving Thoracic Outlet Syndrome (TOS)

The tobacco industry’s tort reform campaign to avoid liability in Louisiana

We analyze the tobacco industry’s “tort reform” campaign in Louisiana, which marked its first takeover of a state tort reform coalition, and interpret the strategies using the Policy Dystopia Model. We searched internal tobacco industry documents in the UCSF Truth Tobacco Industry Documents Library and searched news archives of state and local periodicals between 1985 and 2000. Using alliances, the tobacco industry clandestinely secured legislation in 1988 limiting manufacturer liability for inherently dangerous products. The industry took over a coalition in 1992 to defend its gains, minimize its publicly visible role, and pursue policies it likely could not directly advocate for after Louisiana’s government became more hostile to tort reform. The industry defended gains but failed to secure legislation eliminating liability for inherently dangerous products after its involvement was exposed. This case study expands the applicability of the Policy Dystopia Model. The industry passes laws harmful to the public interest by cloaking its involvement and motivations behind allies, front groups and generalized messaging. Exposing the industry’s role can help public health advocates protect against pro-industry legislation.

Jury verdicts, outcomes, and tort reform features of malpractice cases involving thoracic outlet syndrome

Objective/BackgroundThoracic outlet syndrome (TOS) is most often referred to vascular surgeons. However, there is a lack of understanding of the malpractice cases involving TOS. The goal of this study is to better understand the medicolegal landscape related to the care of TOS. MethodsThe Westlaw Edge AI-powered proprietary system was retrospectively reviewed for malpractice cases involving TOS. A Boolean search strategy was used to identify target cases under the case category of “Jury Verdicts & Settlements” for all state and federal jurisdictions from 1970 to September 2020. The settled case was described but not included in the statistical analysis. Descriptive statistics were used to report our findings, and when appropriate. The P ≤ .05 decision rule was established a priori as the null hypothesis rejection criterion to determine associations between jury verdicts outcomes and state's tort reform status. ResultsIn this study, 39 cases were identified and met the study's inclusion criteria from the entire Westlaw Edge database. Among plaintiffs who disclosed age and/or gender, median age was 35.0 years with a female majority (67.6%). Cases involving TOS were noted to be steadily decreasing since the mid-1990s. The cases were unevenly spread across 18 states, with the highest number of cases (14, 35.9%) from California and the second highest (4, 10.3%) from Pennsylvania. A similar uneven distribution was seen among U.S. census regions, in which the West had the highest cases (39.5%). The study revealed that more cases were brought to trials in tort reform states (26, 68.4%) than in non-tort reform states (12, 31.6%). A total of 24 of 39 (61.5%) plaintiffs had one specific claim, which resulted in their economic and noneconomic damages. Negligent operation and treatment complication represented an overwhelming majority of claims brought by 38 of 39 plaintiffs (97.4%). Misdiagnosis and lack of informed consent were both brought nine times (23.1%) by the group. Intraoperative nerve injury (20 patients, 51.3%) was the most commonly reported complication. Excluding one case with a settlement of $965,000, 30 of 38 (78.9%) cases went to trials and received defense verdicts. Eight cases (20.5%) were found in favor of plaintiffs with a median payout of $725,581. ConclusionsThis study highlighted higher than average payouts to plaintiffs and risk factors that may result in malpractice lawsuits for surgeons undertaking TOS treatment. Future studies are needed to further clarify the relationships between tort reform and outcomes of malpractice cases involving TOS.

Reforms, Errors, and Dermatopathology Malpractice: Then and Now: A Comprehensive Retrospective.

Medical malpractice occurs when a hospital, doctor, or other health care professional, through a negligent act or omission, causes an injury to a patient. The negligence might be the result of errors in diagnosis, treatment, aftercare, or health management. To be considered medical malpractice under the law, the claim must violate the standard of care, the injury must be caused by the negligence and, last but most certainly not least, the injury must result in significant damages. This review is an overview of medicolegal issues specific to the practice of Dermatopathology with the caveat that most are likely pertinent to other specialties of pathology as well. The safety of patients remains the priority in pathology as it does in any medical undertaking, and this is no different in the practice of Dermatopathology. The review is broadly divided in 2 parts-we begin with an overview of tort reforms, advocated by physicians to reduce costs associated with malpractice defense. In the second part we address practical issues specific to the practice of pathology and dermatopathology. These include among others, errors-related to the biopsy type, inadequacy of clinical information regarding the lesion that is biopsied, role of interstate dermatopathology as well as examples of select entities commonly misdiagnosed in dermatopathology. In the last decade, artificial intelligence (AI) has moved to the forefront of technology. While research into the uses of AI in pathology is promising, the use of AI in diagnostic practice is still somewhat uncommon. Given that AI is not fully integrated routinely as a diagnostic adjunct, its' impact on pathology-specific medicolegal issues cannot, as yet at least, be defined. Restriction of medical malpractice is of particular relevance in the COVID-19 era, a period that is anything but normal. The response of states with specific pandemic-related guidelines is addressed with the caveat that this particular issue is only covered in select states. Furthermore, given that the COVID pandemic is only a year old, while it does not appear to have had an immediate impact on pathology-specific medicolegal matters, it is possible that the role of COVID on this issue, if any at all, will and can only be fully defined a few years down the line.

Profits, Reputation, and the Risk of Medical Malpractice Liability

We investigate the classic strategy choice between low cost and high quality when quality is not directly observable and legal liability about quality is uncertain. In addition, we investigate how for-profit and nonprofit organizations differ in their responses to a changing risk of quality liability. Our theoretical analysis predicts that nonprofit organizations, because of their lesser dependence on profits and greater dependence on support from donors and local communities based on perceived quality, will adjust their investment in quality more aggressively than for-profit organizations in response to exogenous changes in the risk of quality liability. This difference in responsiveness will be greater for organizations with better reputations for quality. We find support for these predictions using data on hospital medical expenditures, state medical malpractice awards, and tort reforms in the United States for 1997–2006.

Tort reform: do details matter?

One explanation for increases in health care costs has been malpractice lawsuits. States have introduced several types of tort reforms to control increases in health care costs. This paper adds to the literature by examining how the differences in joint and several liability (JSL) reforms affect the state-specific growth rate in health care expenditures. Additionally, the paper addresses the potential for a fundamental difference between states that pass different types of liability reforms. The results show that JSL reforms that limit joint liability based on percentage of blame have statistically and economically significant impacts on health care expenditure growth rates.

Whose Law is it Anyway? The Erie Doctrine, State Law Affidavits of Merit, and the Federal Tort Claims Act

In the wake of the tort reform movement of the 1970s, more than half of the states aimed to curb frivolous medical malpractice claims. Many states accomplished that goal by enacting statutes imposing pleading requirements on medical malpractice cases. The statutes require plaintiffs to file with their complaints an affidavit from a medical expert stating that the claim has merit. But because the Federal Rules of Civil Procedure do not impose a similar requirement, there is an ostensible conflict between the state law the Federal Rules when these claims are brought in federal court. Federal courts have been inconsistent in their analysis of this conflict. Some conclude that the state laws are substantive and should therefore apply in actions in federal court. Others conclude that there is an irreconcilable conflict between the state law and federal law, and thus federal law must prevail. And when the basis of a federal court’s jurisdiction is the Federal Tort Claims Act, another wrinkle emerges: should a court engage in an Erie analysis at all? This article addresses two distinct issues. First, it addresses whether a federal court exercising federal question jurisdiction should engage in an Erie analysis to determine whether a federal law should trump a conflicting state law. Second, it addresses whether there is a conflict between the state laws and the Federal Rules of Civil Procedure. The article concludes that a federal court should engage in an Erie analysis, and that the state statutes conflict with the Federal Rules and thus should not apply in an action brought in federal court. The article further offers a middle ground whereby the states’ substantive goal of dealing with frivolous medical malpractice claims expeditiously can, in some circumstances, still be vindicated.

Do Doctors Prescribe Antibiotics Out of Fear of Malpractice?

This paper studies whether doctors prescribe antibiotics to protect themselves against potential malpractice claims. Using data from the National Ambulatory Medical Care Survey on a representative sample of doctor visits from 1993 to 2011, I find that doctors are significantly less likely to prescribe antibiotics following tort reforms that reduce malpractice pressure. The changing prescribing patterns appear to have no adverse effects on patient health outcomes over the same time period. Almost 100 million hospital records from the Nationwide Inpatient Sample reveal little to no effects of tort reforms on hospital stays involving conditions that can potentially be avoided through the timely use of antibiotics. Taken together, these findings suggest that malpractice pressure induces doctors to prescribe antibiotics that are medically unnecessary, thereby contributing to the rise in antibiotic resistance.

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.

Medical malpractice in spine surgery: a review.

Medical malpractice is an important but often underappreciated topic within neurosurgery, particularly for surgeons in the early phases of practice. The practice of spinal neurosurgery involves substantial risk for litigation, as both the natural history of the conditions being treated and the operations being performed almost always carry the risk of permanent damage to the spinal cord or nerve roots, a cardiopulmonary event, death, or other dire outcomes. In this review, the authors discuss important topics related to medical malpractice in spine surgery, including tort reform, trends and frequency of litigation claims in spine surgery, wrong-level and wrong-site surgery, catastrophic outcomes including spinal cord injury and death, and ethical considerations.

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.

Tort Reform and Moral Hazard

States have been enacting tort reforms to reduce the liability of physicians conducting malpractice. However, tort reform may create a moral hazard because physicians may take less care due to reduced liability. This paper investigates whether physician moral hazard presents after tort reform. I study this problem through the lens of medical malpractice insurers who, as the primary payer of medical malpractice claims, have the data and ability to predict the behavioral changes of physicians as well as patients. I look at insurers’ post-reform revisions on loss reserves, which were the overall changes in future expected malpractice losses and can be affected by three factors – physician moral hazard, patients filing fewer claims, and caps on loss payments. Physician moral hazard causes an increase in the expected malpractice losses, whereas the other two factors both lead to reduced loss payments. The loss reserve revision is estimated through the full information reserve revision, which is the reported incurred losses minus an actuarial prediction based on a regression method and previous year’s reserve data. The main identification strategy is a difference-in-difference model. I find that after controlling for state and firm characteristics, insurers adjust loss reserves upward after the enactment of the reform to punitive damages and the reform to joint and several liability rules, indicating the prevalence of physician moral hazard. Punitive damages may unpredictably lead to a catastrophic jury verdict against physicians, and the joint and several liability rules can make physicians liable for losses of others who are jointly liable but bankrupt. The empirical results imply that tort reform that significantly lowers physicians’ financial liabilities can reduce the deterrence effect of law and cause a moral hazard issue.

Headache and Neuroimaging: Why We Continue to Do It.

The appropriate imaging of patients with headache presents a number of important and vexing challenges for clinicians. Despite a number of guidelines and studies demonstrating a lack of cost-effectiveness, clinicians continue to image patients with chronic nonfocal headaches, and the trend toward imaging is increasing. The reasons are complex and include the fear of missing a clinically significant lesion and litigation, habitual and standard of care practices, lack of tort reform, regulatory penalties and potential impact on one's professional reputation, patient pressures, and financial motivation. Regulatory and legislative reforms are needed to encourage best practices without fear of professional sanctions when following the guidelines. The value of negative findings on imaging tests requires better understanding because they appear to provide some measure of societal value. Clinical decision support tools and machine intelligence may offer additional guidance and improve quality and cost-efficient management of this challenging patient population.

Buckle Up: The Long, Winding Road to Improved Auto Insurance Premiums in Louisiana

Currently, the State of Louisiana has the second most expensive auto insurance in the nation. Louisiana ranks first in an even more devastating automobile insurance statistic, unaffordability. An already poor state simply cannot afford the repercussions of inaction. The higher auto insurance premiums rise, the more Louisiana citizens will forgo insurance coverage, resulting in loss of compensation for victims of automobile accidents and loss of protection for tortfeasors. Many peg the Louisiana tort system as a key factor in the automobile insurance crisis and call for tort reform. This Article closely examines the various legislative efforts of Louisiana tort reform, specifically, proposed amendments to Louisiana Revised Statutes Section 32:295.1 Subsection E, which currently prohibits the admission of evidence that the plaintiff was not wearing a seat belt for purposes of comparative fault and reduction of damages. Several legislators have argued reducing insurance payouts in Louisiana will in turn reduce cost shifting to Louisiana consumers. This Article reviews various Louisiana House and Senate Bills proposed over the last two decades, incorporates interviews with legislators who presented those bills, and distinguishes Louisiana law with the laws of states with the highest and lowest insurance cost, Michigan and Maine respectively. In addition, this Article examines the pros and cons of various proposed alternative tort reform solutions aimed at reducing automobile insurance costs. The author concludes that because the law has sat idle for nearly two decades, it is unknown whether seat-belt evidence admissibility will reduce automobile insurance costs. Tangible data simply does not exist. The author calls for further review of current and proposed Louisiana law and rapid action so that Louisiana citizens do not continue to endure such costly premiums.

Defensive practice is indefensible: how defensive medicine runs counter to the ethical and professional obligations of clinicians.

Defensive medicine has become pervasive. Defensive medicine is often thought of as a systems issue, the inevitable result of an adversarial malpractice environment, with consequent focus on system-responses and tort reform. But defensive medicine also has ethical and professionalism implications that should be considered beyond the need for tort reform. This article examines defensive medicine from an ethics and professionalism perspective, showing how defensive medicine is deeply problematic. First, a definition of defensive medicine is offered that describes the essence of defensive practice: clinical actions with the goal of protecting the clinician against litigation or some adverse outcome. Ethical arguments against defensive medicine are considered: (1) defensive medicine is deceptive and undermines patient autonomy; (2) defensive medicine subjugates patient interests to physician interests and violate fiduciary obligations; (3) defensive medicine exposes patients to harm without benefit; (4) defensive medicine undermines trust in the profession; and (5) defensive medicine violates obligations of justice. Possible arguments in favor of defensive medicine are considered and refuted. Defensive practice is therefore unethical and unprofessional, and should be viewed as a challenge for medical ethics and professionalism.

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.

Trends in Pediatric Malpractice Claims 1987-2015: Results From the Periodic Survey of Fellows.

Pediatricians are less frequently sued than other physicians. When suits are successful, however, the average payout is higher. Little is known about changes in the risk of litigation over time. We sought to characterize malpractice lawsuit trends for pediatricians over time. The Periodic Survey is a national random sample survey of American Academy of Pediatrics members. Seven surveys between 1987 and 2015 asked questions regarding malpractice (n = 5731). Bivariate and multivariable analyses examined trends and factors associated with risk and outcome of malpractice claims and lawsuits. Descriptive analyses examined potential change in indemnity amount over time. In 2015, 21% of pediatricians reported ever having been the subject of any claim or lawsuit, down from a peak of 33% in 1990. Report of successful outcomes in the most-recent suit trended upward between 1987 and 2015, greatest in 2015 at 58%. Median indemnity was unchanged, averaging $128 000 in 2018 dollars. In multivariate analysis, male sex, hospital-based subspecialty (neonatology, pediatric critical care, pediatric emergency medicine, and hospital medicine), longer career, and more work hours were associated with a greater risk of malpractice claim. From 1987 to 2015, the proportion of pediatricians sued has decreased and median indemnity has remained unchanged. Male pediatricians and hospital-based subspecialists were more likely to have been sued. Greater knowledge of the epidemiology of malpractice claims against pediatricians is valuable because it can impact practice arrangements, advise risk-management decisions, influence quality and safety projects, and provide data to guide advocacy for appropriate tort reform and future research.

US State Tort Liability Reform and Entrepreneurship

AbstractTort 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 – an index of entrepreneurial startup activity – between 1996 and 2016, finding that liability reform is generally positively associated with increased entrepreneurial activity. These results are largely driven by joint and several liability, caps on noneconomic damages, limits on contingency fees, and collateral source rules though this latter result is somewhat less robust, while the effects of joint and several liability do not persist through time.

Medicaid Expansion and Medical Liability Costs

This paper examines the impact of health insurance expansion on medical liability costs using the case of the Affordable Care Act’s (ACA) Medicaid expansion. Medicaid expansion has increased the demand for medical services, but in doing so it may also have increased physicians’ liability in medical practices. By studying medical malpractice insurers’ performance in the U.S. for the period 2010–2018, we find insurers operating in states with Medicaid expansion experienced significantly higher medical liability costs than those in non-expansion states. While insurers in expansion states did increase premiums, the increase was not enough to fully offset rising costs. In addition, we do not find evidence that tort reforms mitigate ACA-induced malpractice liability costs. By exploring the frequency and severity of malpractice claims, we find Medicaid expansion increased malpractice costs mainly by increasing the claim frequency, while tort reforms generally focus on reducing claim severity.