What is Wrong With Tort Law

Despite seeing all kinds of major problems in tort law today, I have never been a huge proponent of many tort law reforms (though I support loser pays).  I don't see why my ability to pursue legitimate damages in court should be curtailed.  What all these tort law reforms never get at is this:

A Glendale jury on Friday cleared an emergency room doctor of
negligence and liability in John Ritter's death, holding he did
everything he could to save the comic actor. ... Jurors, who voted 9 to
3 against liability for Lee and Lotysch, said they were torn between
sympathy for Ritter's wife and children and their conviction that the
doctors were blameless

The fact that the jury is at all conflicted on this point represents a huge miscarriage of justice, but this goes on every day in court.  In fact, if the doctors had worked for Exxon, you can bet Exxon would have been paying despite being blameless.

What patients (and juries) really seam to want is bad outcomes insurance rather than malpractice insurance.  This is in part born out by the fact that researchers can usually find little statistical relationship between truly bad doctors and the size of court malpractice payouts.  Maybe the answer to malpractice insurance is to convert it to a workers-comp-like no-fault insurance systems that pays off on bad/unexpected outcomes following a fixed schedule and keeps everything out of court.  The reduction in legal costs alone would be staggering.


  1. DWPittelli:

    Are you saying that whenever someone dies the government should make a death payment? Or that whenever someone dies in a hospital the government should make a death payment? Or that whenever someone dies in a hospital, who didn't appear all that sick upon entering said hospital, the government should make a death payment? Or that whenever anyone dies who's under a certain age, there should be a death benefit? Unless, perhaps, this someone OD'd on drugs, or was a suicide? Or dies of AIDS, if from doing drugs, but not if from legally protected gay activity?

    You see what I'm getting at. We'd either be giving everyone free life insurance, or we'd still have these trials. Only they'd be about whose death was more cosmically unjust, rather than about whether medical providers caused the death.

  2. nicole:

    I don't think Coyote is proposing the government make any kind of payment at all, but that doctors should be buying negative outcome insurance instead of malpractice insurance. Interesting idea.

  3. tribal elder:

    Intersting proposal, with lots of opportunity for upside, some risks of unintended results.

    If the medical tort system were like workers' compensation-

    1) Value of a death would be a set figure, maybe $/years lost, based on life expectancy tables. Other the various bad outcomes impairments would also be set figures.

    2) With damages set by some statutory means, the only thing to sue about would be whether the life expectancy table or the lost wages projection was somehow inapplicable-like the decedent(age 80) was the sole support of his grandparents, all four of them. Since this wouldn't push the dollar value of the damages WAY up in most cases, there would be less suit-incentive amd more incentive to settle/compromise/ make a deal on both sides, because a suit wouldn't make the net (of legal fees)payment to claimants bigger. Go to loser pays if you fight for an award beyond the table ?

    3) Possible downside-There might be disincentives on the medical industry side to improve. I know that the particular hospital practice that led to my wife's death was changed after the hospital became a defendant. I suspect that the medical malpractice bar, or at least fear of the medical malpractice bar, injects some quality control on the medical industry.

    4) This would inject MORE government into the healthcare business. Our single nationalized industry, the delivery of first class mail, stands as a continuing reminder of the wisdom and efficiency of central planning and control.

  4. Reformed Republican:

    It sounds like this pays regardless of the liability of the Doctor. If so, it is a horrible idea. If that is not what is meant, please clarify.

  5. GU:

    I highly doubt the jury instructions included something like "if you feel sorry for the decedent's family, go ahead and stick it to the doctor, regardless of fault."

    It is scary that the jury would even admit that their sympathy for the family even entered into their decision-making in the case. They are supposed to decide if the doctor is guilty under the law; this has nothing to do with decedent's family being sympathetic.

    I've always had a Caplan-esque "why do we even use lay-jurors?" streak in me. The vast majority of citizens cannot even craft a logical argument, let alone apply a complicated fact pattern to opaque legal standards that very smart legal minds struggle to understand their whole career. Maybe requiring that jurors have at least a college education would help stop some of this foolishness?

  6. Jim Collins:

    I consider getting out of jury duty as another benefit of getting a college education. I get the form in the mail, answer it and most of the time never hear from them again. If I do get called I show up, answer some questions, including level of education and employment, as soon as I say Bachlor's Degree, Mechanical Engineer, I'm told that my services are not required and "have a nice day".

  7. happyjuggler0:

    Getting out of jury duty is quite easy withoutbeing unethical. Simply say you like the idea of jury nullification.

    In fact, if everyone said that, then they'd have to actually keep any potential jurors who believed in jury nullification. They otherwise would not be able to fill juries. Finally we could get justice instead of the law.

  8. Bearster:

    juggler: are you saying that "justice" is when the law can be redefined by any ad-hoc group of 12 people?

    We need to move towards objective law, not towards total subjectivism and anarchy.

  9. tsiroth:

    I have been a supporter of loser pays and various tort reforms. However, I have come to the conclusion that judges may be the biggest problem with the legal system. I am not talking about arguments over "legislating from the bench" or "original intent" or "strict construction."

    The judicial bias most endemic to our legal system is one _toward attorneys_. This is only natural, given that nearly all judges _are_ attorneys. Generally speaking, judges are too reluctant to dismiss suits, and far too unwilling to sanction attorneys.

    Attorneys are explicitly trained as _advocates_ and usually have little or no training in epistemology. They do not really know how to evaluate competing claims. As jurists, we ask them to be impartial triers of fact, even though all of their training and legal experience requires the opposite of impartiality.

    In other words, though it is not intuitive, I believe lawyers make lousy judges.

    I know that in the real world it will never happen, but I think getting the lawyers out of the judiciary is the single most effective reform we could ever enact.

  10. Bonewitz:

    Actually most malpractice cases are initiated by a "poor outcome". The individual that ties "poor outcome" and physician malpractice concept together is the plaintiff medical expert who states the poor outcome unequivacably is caused by practice below the standard of care. If the jury believes this expert than the poor outcome was caused by malpractice.

  11. DAV:

    Am I missing some sarcasm here? What would be the difference between "malpractice" insurance and "bad outcome" except in name? Changing the name won't fix anything anymore than changing the word "cancer" to "unfortunate condition" (unless of course you believe in the power of euphemisms). If the cost of the insurance is driven by the likelihood of payout, then "bad outcome" insurance would cost the same as "malpractice." And wouldn't the doctor still be sued for malpractice anyway? I just can't see anyone having the chutzpah to sue doctor X for Y's bad luck and publicly saying so.

    The real problems behind malpractice suits are: 1) a large number are baseless; 2) they drive up the cost of medical care and 3) they require juries to evaluate matters beyond normal expertise. The last point is likely the most critical. It's what causes the whole process to be whimsical.

  12. RJ:


    With respect to the sympathy of juries, tort reformers seem to always think that huge verdicts are the result of juror sympathy to the plaintiff (rather than good evidence of liability and damages).

    In California, where Ritter's malpractice trial occurred, jurors are given jury instructions that sympathy for the plaintiff cannot be used as a basis of a verdict in the plaintiff's favor. While it is true that jurors do not always adhere to jury instructions--many times to the detriment of plaintiffs--in my experience jurors do a very good and business-like job excluding sympathy from their decision making.

    Seems like they did in this case, too.

  13. Anonymous:

    The heart of the problem is that malpractice cases, and legal cases in general, are poorly decided. Loser pays doesn't address the problem, since the loser is often scientifically in the right. Many cases where nothing wrong was done are settled because of the expectation of a wrong outcome, should the case go to trial. In theory legally imposed limits would not be necessary if the courts were fair. But how does the concept of fairness ever enter the discussion when, for example, one case of cerebral palsy "wins" one hundred million dollars, and another gets nothing? Leaving aside, for the moment the fact that nearly all cases of CP are known to be genetic and have nothing to do with the delivery. The reason that capping awards has traction among the doctors is that the prospect of unlimited damages attracts lawsuits when the plaintiff is sympathetic or the injury gruesome or both--regardless of fault. It represents the judgement that the doctor cannot get an even break from the court system.

    I agree with Ted Olsen that contracting damages would be best, if the contracts were honored. Failing that, bad outcome insurance would be purchased by the patient, not the doctor. The patient would best know how much money will make them whole, and this would be resolved before the care was provided. This would allow underwriting to make the premium correspond to the risk. A policy against trisomy 21 in a 21 year old woman might cost $500 for a million dollars of coverage. A 45 year old might pay a hundred times that.

  14. Jim Collins:

    Bad outcome insurance? Who would be stupid enough to underwrite that? All you have to do is to take a look at how the insurance claims from hurricane damage are being handled by State governments to see that it will never work. One of the biggest problems is that an "assumed risk contract" isn't worth the paper it is printed on. What happens when that 45 year old patient can't afford the "bad outcome insurance"? They won't be able to find a doctor. I can understand this for cosmetic or an elective proceedure, but what about a necessary proceedure? I can see the headlines on that one. "Man Dies from Heart Attack, Because He Couldn't Afford Insurance.", then his family sues both the Hospital and the Insurance Company.

  15. gary:

    Your point is well taken. Juries are making decisions based on emotions and non-factual information, or based upon who is getting sued, as if deep pockets have anything to do with right or wrong. http://www.choicearizona.com