Tort Reform Research Articles

The Single-Subject Rule: A State Constitutional Dilemma

Critics of the proliferation of omnibus legislation in Congress have suggested that state constitutions offer a potential solution. Forty-three state constitutions include some sort of “single-subject” rule, that is, the requirement that each act of the legislature be limited to a single subject. Many of these provisions date back to the early and mid-nineteenth century, and, collectively, they have been the subject of literally thousands of court decisions. Nor is the rule a relic from a bygone era. In the last two decades, state courts have used single-subject rules to invalidate laws dealing with, inter alia, firearms regulation, abortion, tort reform, immigration, local minimum wage laws, sex offenders, enhanced criminal penalties, and school vouchers. Yet, despite having long been a part of the constitutional law of most states, the single-subject rule is deeply problematic. Courts and commentators have been unable to come up with a clear and consistent definition of what constitutes a “single subject.” Instead, persistent themes in the single-subject jurisprudence has been the inevitable “indeterminacy” of “subject” and disagreement over how deferential courts should be to legislatures. Due to the slipperiness of “subject,” many analyses have focused on what are regularly said to be the primary purposes of the rule—the prevention of legislative logrolling and riders, and the promotion of a more orderly and informed legislative process—and have called for reframing the enforcement of the rule around the advancement of these goals. But determining whether a law is the product of logrolling, or whether a provision should be treated as a rider, will often be difficult. And it is far from clear that logrolls and riders are as pernicious as proponents of more vigorous enforcement of the single-subject rule assume. The more aggressive use of the single-subject rule urged by advocates as a means of thwarting “legislative chicanery” and “backroom politics” could also undo the cooperation and compromise necessary to get difficult but important legislation enacted. This article examines the history and purposes behind the single-subject rule; recent state supreme court cases interpreting it; and the arguments for reframing the rule more tightly around the prevention of logrolling or riders. It finds that although the justifications for the rule – improved legislative deliberation, transparency, and public accountability – are admirable goals the state constitutional rule has not been and is unlikely to be an effective means of achieving those ends.

A re-examination of the effects of tort reforms on obstetrical procedures and health outcomes

Numerous papers examined the effects of tort reforms on physician behavior using data from the 1990s. However, a medical malpractice “crisis” in the early 21st century saw many US states adopt tort reforms to alleviate this issue. Using the United States Linked Birth and Infant Death Records for all fifty states and the District of Columbia data from 1995 to 2011, we find that tort reforms are not as effective as they once were. However, we find evidence that physicians’ procedural choices are affected by certain tort reforms. For example, not only are C-section rates and “preventable” complications affected by tort reforms, but we also observe that physicians react heterogeneously to tort reforms based on patient riskiness and race.

Medical Liability Erased: How the Protecting Access to Care Act of 2017 Limits Patients’ Access to Proper Care

This paper outlines the severe impact that the Protecting Access to Care Act would have on victims of malpractice who have suffered grave injuries, and also explains how the bill would nearly eliminate patients’ ability to recover damages when doctors or hospitals provide negligent care. Part II of this paper will examine some of the limits that this bill would impose and the impact it would have on injured patients’ ability to recover damages. Part III will describe those entities that are truly driving this bill and what their motives for doing so are. Part IV will clarify some of the misconceptions about tort reform and caps on damages and why the enactment of this bill would ultimately do more harm than good. Finally, Part V will examine the benefits of medical malpractice litigation and why it is imperative to ensure that patients have the ability to find redress in a court of law.

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.

Defensive medicine practice and effect on healthcare expenditures and tort reform

Defensive medicine practice and effect on healthcare expenditures and tort reform

Database of State Tort Law Reforms (DSTLR 4th)

This manuscript of the DSTLR (5th) updates the DSTLR (4th) and contains the most detailed, complete and comprehensive legal dataset of the most prevalent tort reforms in the United States between 1980 and 2012. The DSTLR has been downloaded almost 2000 times and has become the standard tool in empirical research of tort reform. The dataset records state laws in all fifty states and the District of Columbia over the last several decades. For each reform we record the effective date, a short description of the reform, whether or not the jury is allowed to know about the reform, whether the reform was upheld or struck down by the states’ courts, as well as whether it was amended by the state legislator. Scholarship studying the empirical effects of tort reforms relies on various datasets, (tort reforms datasets and other legal compilations). Some of the datasets are created and published independently and some of them are created ad-hoc by the researchers. The usefulness of these datasets frequently suffers from various defects. They are often incompatible and do not accurately record judicial invalidation of laws. Additionally, they frequently lack reforms adopted before 1986, amendments adopted after 1986, court-based reforms, and effective dates of legislation. It is possible that some of the persisting variation across empirical studies about the effects of tort reforms might be due to the variations in legal datasets used by the studies. This dataset builds upon and improves existing data sources. It does so through a careful review of original legislation and case law to determine the exact text and effective dates. The fifth draft corrects errors that were found in the fourth draft, focuses only on the most prevalent reforms, and standardizes the descriptions of the reforms. A link to an Excel file which codes ten reforms found in DSTLR (5th) is provided. It is hoped that creating one “canonized” dataset will increase our understanding of tort reform’s impacts on our lives.

Apologies as ‘Canaries’ — Tortious Liability in Negligence and Insurance in the Twenty-First Century

The relationship between tort liability in negligence and insurance is significant, although for most of the twentieth century insurance was ignored in determining liability, despite the massive rise in insurance. Although the determination of liability in negligence typically ignores the existence of insurance, it is there in the background (sometimes driving tort reform) and, if it fails it can be catastrophic for the defendant. The extent to which insurance should be taken into account in considering liability is controversial; this chapter argues that it should only be permissible where the insurance is compulsory or universal, but that it is vital to consider the socio-legal or external power of insurance in relation to tort law because of its importance for access to justice. Insurance contracts typically regulate the relationship between the insured and tortious liability. In most jurisdictions liability insurance contracts contain a provision which makes the contract void if the insured makes an admission against interest. This is traditionally taken to include an apology, hence the commonly repeated advice not to apologise after an accident. The question of whether an apology is an admission is not necessarily clear in the absence of apology-protective legislation. Cases have decided this differently both across and within jurisdictions, although the better view in Australia and the UK is that an apology is not an admission of liability in negligence. This paper attempts to map out the law on apologies and insurance and argues that what is vital is that the liability regime and the insurance regime have some congruence in terms of access to justice and that the apology may serve as a ‘canary’ in the mine of liability – to show whether there is proper congruence or not.

Updates in medical professional liability: a primer for electrophysiologists.

Medical professional liability (MPL), traditionally known as medical malpractice, affects most electrophysiologists some point during their career, either directly through personal experience or indirectly by the experiences of colleagues. Despite this, most physicians struggle to accurately describe MPL in the context of clinical practice. Providers know little about the outcomes of malpractice claims as reporting of settled or litigated MPL cases is sparse in the medical literature. In the USA, individual patients can file a malpractice claim in a tort-based system, whereas in other parts of the world, no-fault malpractice systems are increasingly prevalent. Tort reform remains a topic of much debate as the economic costs of malpractice contribute to the ever-expanding costs of health care in the USA. This review provides a framework to define MPL, describes the tort and no-fault systems of malpractice, and details the economic impacts of MPL on health care and the practice of cardiology in the USA. Current policy trends towards MPL including tort reform are reviewed, and MPL as it relates to the practice of cardiac electrophysiology is detailed.

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.

The Effect of Damage Cap Reforms on Medical Malpractice Insurance Market Conditions During Periods of Crises

ABSTRACT This article evaluates whether and how tort reform, specifically damage caps, stabilizes medical malpractice insurance markets. We examine state‐level medical malpractice insurance market performance in the United States for the period 1994–2010, a period characterized by a significant variation across states in their legal environments. First, we find that states with damage caps are less likely to have a crisis. Second, we find that the magnitude of crisis events is attenuated in states with damage caps, while the volatility of performance is not significantly different across states with and without damages caps. Finally, conditional on a state entering a crisis, we find that states with damage caps improve more quickly following the crisis than states without damage caps. Overall, our results suggest that damage caps stabilize medical malpractice insurance markets.

Rail - the left-out service alternative

The trucking industry faces a number of issues as it tries to meet growing demand for services. Trucking services are stifled by three factors: (1) strict enforcement of hours of service requirements which preclude carriers from meeting scheduled appointments; (2) over-the-road driver shortages; and (3) the absence of tort reform or federal preemption to trump nuclear judgments which reach upstream to shippers and brokers. However, rail may be an alternative for a growing number of commodities. This article examines the viability of rail services for the wine industry.

Judicialization and Its Effects: Experiments as a Way Forward

Law and courts play a larger role in American policymaking than in similar countries—and a larger role than ever before in American politics. However, systematic efforts to evaluate the effects of judicialized policymaking are consistently plagued by problems of causal inference. Experiments offer a way forward. Causal claims by public law scholars are often undercut by validity difficulties that are avoidable if scholars engaging in observational research incorporate the tenets of experiments in their research designs, as well as if more public law scholars attempted to isolate the effects of judicialization in controlled settings, such as survey or laboratory experiments. An original survey experiment on the effects of media reporting on tort reform suggests that experiments have much to offer public law scholars. Despite certain challenges in implementation, experiments and observational research based on experiments provide a promising path for assessing the varied—and important—effects of judicialized policymaking.

Single-State Tort Reform Analysis: Perspectives From the Volunteer State (Tennessee)

Malpractice legislation is of particular concern to radiologists [ 1 Borgstede J.P. Tort reform and you: winners and losers, friends, foes, and facts of life. J Am Coll Radiol. 2004; 1: 535-536 Abstract Full Text Full Text PDF PubMed Scopus (1) Google Scholar , 2 Berlin L. Radiologic malpractice litigation: a view of the past, a gaze at the present, a glimpse of the future. AJR Am J Roentgenol. 2003; 181: 1481-1486 Crossref PubMed Scopus (15) Google Scholar ] who are involved in a majority of patient encounters in the inpatient and outpatient setting. Accordingly, they are frequently involved in litigation. In fact, radiologists are consistently within the top 10 medical specialties named in malpractice suits and also for payment of malpractice claims [ 3 Thomson N.B. Patel M. Radiology liability update: review of claims, trends, high-risk conditions and practices, and tort reform alternatives. J Am Coll Radiol. 2012; 9: 729-733 Abstract Full Text Full Text PDF PubMed Scopus (11) Google Scholar ]. Most radiologists agree that tort reform would be beneficial in reducing the number of frivolous claims and costs of defensive medicine. However, attempts at medical malpractice tort reform have been stymied by a strong and well-funded plaintiff attorney lobby, especially on the national level. The most recent example of federal tort reform is the Protecting Access to Care Act (HR 1215), which was recently passed by the House [ 4 Congress.gov. H.R.1215—Protecting Access to Care Act of 2017. Available at: https://www.congress.gov/bill/115th-congress/house-bill/1215/text. Accessed January 23, 2018. Google Scholar ], but is unlikely to pass the Senate. Historically, the rules governing the practice of medicine, including medical malpractice, fall under the state purview. The federal government would have to address concerns over principles of federalisms when attempting to override state tort law. Concerns over the constitutionality of national malpractice law threaten to erode the broad support that any tort reform proposal would need to address an already highly controversial subject.

Off to the Courts? Or the Agency? Public Attitudes on Bureaucratic and Legal Approaches to Policy Enforcement

A key curiosity in the operation of the American regulatory state lies with its hybrid structure, defined by centralized, bureaucratic approaches but also more decentralized actions such as lawsuits brought by private citizens in the courts. While current research on these two pathways focuses at the elite level—exploring how and why political actors and institutions opt for legal or administrative strategies for implementing different public policies—there is little research that examines public attitudes toward how policy is enforced in the U.S. Given that the public is a key partner in this process, this paper integrates public attitudes into the discussion, tapping into conceptions of “big government,” privatization, and the tort reform movement. Using original data from a series of vignette-based experiments included in the 2014 Cooperative Congressional Election Survey, we examine public preferences about how policy is regulated—by private citizens in the courts or by government officials in agencies—across a broad number of policy areas. We offer one of the first studies that adjudicates the boundaries of public attitudes on litigation and bureaucratic regulation in the U.S., offering implications for how elites might approach the design of policy implementation for different issue areas.

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.

Screening Plaintiffs and Selecting Defendants in Medical Malpractice Litigation: Evidence from Illinois and Indiana

Many physicians and tort reform advocates believe that most medical malpractice (med mal) claims are “frivolous.” As evidence, they often rely on reports that only about 20 percent of claims result in a payout. Many physicians and reform advocates also believe that plaintiffs lawyers often sue every health provider with even a remote a connection to the patient. Plaintiffs’ lawyers, however, insist that they screen med mal cases carefully, and when they bring a claim, are selective in whom they sue. Can these perspectives be harmonized? We study this question using databases of every insured med mal claim closed in Illinois during 2000–2010 and in Indiana during 1980–2015, and with semi‐structured interviews with six plaintiffs’ lawyers. We innovate by using defense costs to assess whether plaintiffs’ lawyers take a case seriously. We treat cases with under $5k in defense spending as “nonserious” unless they have a payout over $25k. We find evidence that many “cases” are nonserious—suggesting that screening is an ongoing process that does not end when a case is accepted. Observed success rates are sensitive to whether one counts “claims” (each defendant is a separate claim) or “cases” (one plaintiff vs. one or more defendants), includes pro se and/or only represented cases, and includes all versus only serious cases. If we analyze cases instead of claims and limit to serious, represented cases, we find much higher success rates (43 percent in Illinois; 44 percent in Indiana). Success rates are higher still in cases brought solely against institutional defendants (58 percent in Illinois; 68 percent in Indiana). Plaintiffs’ lawyers are also selective in the number of defendants they sue. In med mal cases involving only physicians and/or institutions, the mean number of defendants is 1.5 in Illinois and 1.8 in Indiana.

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.

Judicial Independence on Unelected State Supreme Courts

ABSTRACTThe state supreme court literature often overlooks the twelve states that use traditional appointment systems or fails to explore differences in their judicial designs. Eight states require justices to be reappointed at the end of a fixed term, while a different set of eight states currently use judicial commissions to limit the discretion of partisan elites to appoint judges. I develop a principal-agent theory of judicial independence to test how unelected judges under different institutional arrangements respond to elite preferences. An analysis of business cases from 1995–2010 indicates justices selected by judicial commissions are significantly less sensitive to elite ideology than justices nominated by partisan elites. The most responsive behavior occurs among justices subject to periodic reappointment who are chosen by partisan elites, while tenured judges chosen by judicial commissions behave independently of elite ideology. The data also provide evidence that state tort reforms significantly increase the probability of pro-business votes.

The net effects of medical malpractice tort reform on health insurance losses: the Texas experience

In this paper, we examine the influence of medical malpractice tort reform on the level of private health insurance company losses incurred. We employ a natural experiment framework centered on a series of tort reform measures enacted in Texas in 2003 that drastically altered the medical malpractice environment in the state. The results of a difference-in-differences analysis using a variety of comparison states, as well as a difference-in-difference-in-differences analysis, indicate that ameliorating medical malpractice risk has little effect on health insurance losses incurred by private health insurers.