Tort Reform in the States
As the national debate on tort reform intensifies, there are emerging signs that not everyone wants to be rescued from the litigation "crisis" -- not even in the red states. In recent weeks, for example, the Republican-dominated Wyoming legislature has turned back proposed legislation to tighten the rules on expert testimony in malpractice cases, and a proposal to move toward a full-blown Daubert standard in Virginia has reportedly died in committee.
Georgia, however, is showing less trepidation. On Tuesday, a sharply divided Georgia Senate passed a comprehensive and controversial malpractice reform provision, and the Georgia House is expected to follow suit. (The Atlanta Journal-Constitution has the story.) Georgia's Senate Bill 3 is no halfway measure. The bill imposes damage caps, provides for the inadmissibility of apologies, tightens venue rules, and provides for fee-shifting where the plaintiff has rejected a settlement offer substantially more favorable than the jury's eventual award.
Needless to say, it also tightens the reins on expert testimony in various ways, and contains this unusual provision:
If the states now plan to launch a contest to see which jurisdiction can woo the greatest number of malpractice-prone physicians, we wonder if some litigation-friendly states might decide to fight back. Suppose, for example, that Judge Posner turned out to be correct in thinking that malpractice exposure does provide tangible incentives for health care providers to exercise due care. Suppose further, as seems not totally implausible, that over time, the states began to fall into polarized camps: "traditional" states that eschew damage caps and reject stringent restrictions on expert testimony, versus "reform" states that limit damages and scrutinize expert evidence very strictly. If the quality of care began to suffer markedly in the "reform" states, would some consumers of medical services not begin to consider opting for doctors in other jurisdictions, where the quality of care might be higher, and where full-blooded malpractice remedies would be available in the event of mishap?
Most consumers, confessedly, are not currently in a position to travel to doctors outside the state of their domicile. You're lucky, in America, if you have health insurance permitting you access to any doctor at all. But many persons weigh their decisions about medical treatment very, very carefully, and some persons do possess enough resources to have choices. Should the domiciliary of a "tort reform" state be permitted to travel to another jurisdiction, enjoy the benefits of its superior standards of care, and resort to its more permissive malpractice regime in case things go awry? And if that sort of thing starts, could the "traditional" states consider adopting choice-of-law measures under which the substantive, procedural, and evidentiary rights of malpractice claimants would be derived from the state of their domicile? Would it be constitutional, to do that? And if it were, would such interstate mischief begin to supply a legitimate rationale for a uniform federal standard?
Before some conservative think-tank picks up on this line of thought, we had better be clear. So far as we know, no one has proposed the hypothetical choice-of-law legislation we're imagining, and if somebody did, we suspect there would be serious problems under the Dormant Commerce Clause. No such problems, in fairness, would appear to beset Georgia's Senate Bill 3, which does not discriminate between Georgia residents and nonresidents.
But it is odd, all the same, to see a state so unabashedly determined to lead the Nation in the inadmissibility of expert evidence in malpractice cases. And it does raise the question of how other states should respond, if things were to reach the point where consumers start hopping on airplanes to take vacations from their own states' malpractice regimes.
Update 2/9/05: Law.com has posted an article by Greg Bluestein of the Fulton County Daily Report, entitled "Mother's Death Is Case Study for Tort Reform," that evaluates how Senate Bill 3 might have affected a 2002 malpractice case in which a jury awarded $2.5 million to the family of a 29-year-old homemaker after she died following what should have been routine surgery.
Georgia, however, is showing less trepidation. On Tuesday, a sharply divided Georgia Senate passed a comprehensive and controversial malpractice reform provision, and the Georgia House is expected to follow suit. (The Atlanta Journal-Constitution has the story.) Georgia's Senate Bill 3 is no halfway measure. The bill imposes damage caps, provides for the inadmissibility of apologies, tightens venue rules, and provides for fee-shifting where the plaintiff has rejected a settlement offer substantially more favorable than the jury's eventual award.
Needless to say, it also tightens the reins on expert testimony in various ways, and contains this unusual provision:
It is the intent of the legislature that the courts of the State of Georgia not be viewed as open to expert evidence that would not be admissible in other states. Therefore, in interpreting and applying this Code section, the courts of this state may draw from the opinions of the United States Supreme Court in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993); General Electric Co. v. Joiner, 522 U.S. 136 (1997); Kumho Tire Co. Ltd. v. Carmichael, 526 U.S. 137 (1999); and other cases in federal courts applying the standards announced by the United States Supreme Court in these cases.This statutory language is admittedly vague, but on one reading, it comes close, at least in spirit, to enacting a most-favored-nation rule for Georgia malpractice defendants: If some significant body of jurisdictions would reject the plaintiff's evidence on the standard of care or causation, then Georgia's courts should reject it too.
If the states now plan to launch a contest to see which jurisdiction can woo the greatest number of malpractice-prone physicians, we wonder if some litigation-friendly states might decide to fight back. Suppose, for example, that Judge Posner turned out to be correct in thinking that malpractice exposure does provide tangible incentives for health care providers to exercise due care. Suppose further, as seems not totally implausible, that over time, the states began to fall into polarized camps: "traditional" states that eschew damage caps and reject stringent restrictions on expert testimony, versus "reform" states that limit damages and scrutinize expert evidence very strictly. If the quality of care began to suffer markedly in the "reform" states, would some consumers of medical services not begin to consider opting for doctors in other jurisdictions, where the quality of care might be higher, and where full-blooded malpractice remedies would be available in the event of mishap?
Most consumers, confessedly, are not currently in a position to travel to doctors outside the state of their domicile. You're lucky, in America, if you have health insurance permitting you access to any doctor at all. But many persons weigh their decisions about medical treatment very, very carefully, and some persons do possess enough resources to have choices. Should the domiciliary of a "tort reform" state be permitted to travel to another jurisdiction, enjoy the benefits of its superior standards of care, and resort to its more permissive malpractice regime in case things go awry? And if that sort of thing starts, could the "traditional" states consider adopting choice-of-law measures under which the substantive, procedural, and evidentiary rights of malpractice claimants would be derived from the state of their domicile? Would it be constitutional, to do that? And if it were, would such interstate mischief begin to supply a legitimate rationale for a uniform federal standard?
Before some conservative think-tank picks up on this line of thought, we had better be clear. So far as we know, no one has proposed the hypothetical choice-of-law legislation we're imagining, and if somebody did, we suspect there would be serious problems under the Dormant Commerce Clause. No such problems, in fairness, would appear to beset Georgia's Senate Bill 3, which does not discriminate between Georgia residents and nonresidents.
But it is odd, all the same, to see a state so unabashedly determined to lead the Nation in the inadmissibility of expert evidence in malpractice cases. And it does raise the question of how other states should respond, if things were to reach the point where consumers start hopping on airplanes to take vacations from their own states' malpractice regimes.
Update 2/9/05: Law.com has posted an article by Greg Bluestein of the Fulton County Daily Report, entitled "Mother's Death Is Case Study for Tort Reform," that evaluates how Senate Bill 3 might have affected a 2002 malpractice case in which a jury awarded $2.5 million to the family of a 29-year-old homemaker after she died following what should have been routine surgery.
5 Comments:
Suggesting that access to a physician is a matter of luck is beneath one of your erudition. There are many Type 1 Diabetic youngsters who would quickly die without insulin, yet apparently they are all among the lucky and insured (what are the odds?).
Those with good insurance probably have more choice in their healthcare than others, but uninsured and poor Americans receive medical care every day in America.
The liberal notion that 20, or, 30, 0r 100 million (whatever the nombre du jour is) citizens cannot access the system is simply not true. I hope that the care for the poor and uninsured improves, but it is hardly the case that they are filling mass graves with their untreated corpses.
If the price of being called "erudite" is to accept this correction, then we are more than happy to do so in a humble spirit. There are indeed various means by which uninsured Americans can often gain access to essential health care. No doubt it would be conceded, in response, that there is room to debate whether the level of access thereby afforded is reasonably sufficient -- a point, no doubt, on which rational persons of good will might differ, when we start investigating the particulars.
But it was not our primary purpose to enter into the broader debate about the appropriate levels of socially guaranteed health care, and so we note that the reader's legitimate criticism does not affect the argument in the post. The point being made in the post is that although some citizens may lack the wherewithal to seek out medical care in distant states where the standard of care may be higher (and malpractice relief more available), other citizens do possess the resources to make such choices.
As noted on Overlawyered, Jon Klick and Thomas Stratmann published a paper in 2003, "Does Medical Malpractice Reform Help States Retain Physicians and Does it Matter?" which finds that damages caps reduce infant mortality rates among African-Americans by increasing the likelihood of ob-gyn doctors to locate in-state, thus increasing the availability of pre-natal care. If so, there would appear to be an easy choice to make, whereby tort reform both provides more doctors and better-quality care, with the only ex ante Pareto-losers being the legal community. (Ex post, of course, some plaintiffs would miss out on jackpot damages awards.)
Best,
Ted Frank
Not having read the article Ted Frank describes, I nevertheless wonder whether some particular problems with the scarcity or rationing of medical care in America might be caused by factors other than (or in addition to) litigation (e.g., by poverty), and whether across-the-board "tort reform" may not an overbroad remedy for some of those problems, given the availability of more direct or narrower alternatives (e.g., finding ways to make the provision of ob-gyn services to poor or underserved populations more affirmatively remunerative). That some ob-gyn practitioners are abandoning African-American communities would be sociologically unsurprising to me under any tort regime. It might even be a reason to create special and more forgiving "Good Samaritan" liability regimes for any ob-gyn doctors who will fill that gap. But it does not sound to me like a compelling reason, in itself, to cap noneconomic damages in malpractice suits against (say) surgeons, or even against ob-gyn practitioners serving affluent communities. Nor does it sound like the factual setting one might necessarily choose for study, if one wanted one's investigations to support conclusions of high generality about how malpractice liability affects the supply curve.
It also seems to me that framing the issue in terms of winners and losers ex ante and ex post could tend to bias the scales, if only "ex ante" considerations were thought to matter, and if all damaging medical outcomes were lumped into the "ex post" side of the equation. E.g., if the Klick & Stratmann paper should happen not to supply guidance of perfect generality, then those limbs that turn out to have been wrongly amputated "ex post" represent a real social cost, and a person in the Rawlsian "original position" might very rationally opt "ex ante" for a regime in which strong incentives existed to amputate all and only the right things, and in which compensation would be afforded when the wrong ones were lopped off.
There may be some considerable correspondence, after all, between the set of persons who secure Frank's "jackpot damage awards" and the set of persons who suffer the most serious "ex post" injuries. Imperfect correspondence, to be sure (which is what gives us anecdotes). But perhaps some fair amount of correspondence nonetheless.
Here is a timely link to malpracice articles:
http://badpractice.blogspot.com
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