January 22, 2010

Compensation process itself influences claimant health outcomes

On SSRN, Genevieve Grant and David M. Studdert of the University of Melbourne take up an issue we've encountered before. Abstract:

Do injured persons whose injuries are potentially eligible for compensation under social insurance schemes experience worse health outcomes and slower recoveries in the medium-to long-term than persons with similar injuries that are not covered by compensation schemes? Epidemiologists and health services researchers have probed that question since the 1970s, but interest in it has accelerated sharply in the last decade. A substantial empirical literature now exists to support the existence of a link between compensation status and health outcomes. A strand of that literature specifically implicates the role of compensation processes, lawyers and adversarialism in producing or perpetuating ill health among claimants.

This article critically reviews research into the compensation-health relationship. Systematic methodological weaknesses are identified - in particular, an inability to come to grips with the legal contours and realities of compensation processes. We conclude that, although there are important gaps in the evidence, profound questions about the impact of compensation processes on claimants' health have been placed on the table. Legal professionals and policymakers must take these questions seriously. The involvement of legal scholars in multidisciplinary research may improve the quality of the evidence base and facilitate appropriate policy interventions.

The paper is titled "Poisoned Chalice? A Critical Analysis of the Evidence Linking Personal Injury Compensation Processes with Adverse Health Outcomes" (via TortsProf)

December 21, 2009

Around the web, December 21

• A seeming, or a real, increase in black lung disease? [Stier, Mass Tort Lit]
• NERA releases 2009 securities litigation study [Kevin Lacroix, Lyle Roberts]
• Honest Services Fraud & Antitrust: Will Supreme Court Re-Write Rules For "Competition Crimes"? [Dugan/Botti, WLF]
  
• Name of NYT's Morgenson might be on the cover of that business book, but check the fine print [Stoll, Future of Capitalism]
• Continuing the discussion: "Vanderbilt Law Review En Banc PCAOB Roundtable" [ConcurOp]
• Big plaintiff firms continue push into patent litigation [Baxter, AmLaw Daily]
• "Wyeth v. Levine Scholarship Roundup" [Civil Pro/Fed Courts Blog]
• Wrongful opinion punished? "Civil Conspiracy Lawsuits Filed Against Climate Change Deniers" [SolveClimate]

October 21, 2009

Vaccine litigation not preempted in Georgia

The Georgia Supreme Court took a "breathtaking" view of the legislature's role in a 2007 vaccine preemption case, and that puts the Obama administration in an awkward position, writes Jack Park.

August 1, 2009

Clear as Mud: Asbestos Trusts and Empirical Evidence

One of the most frustrating things about studying the intersection of bankruptcy and asbestos personal injury is the lack of transparency concerning the asbestos claims filed against the debtor and, ultimately, the asbestos trusts established by asbestos bankruptcy plans.

This is particularly troubling in recent years because lawyers and firms that submit claims to the trusts have increasingly argued that the trust distribution procedures, whose terms are generally left to the discretion of leading plaintiffs' tort lawyers, are nonetheless excluding valid claims and/or requiring more information that the tort system. In other words, these highly-sophisticated players in the tort bar could not maximize payouts and minimize time to payment when left almost entirely to their own devices.

As ridiculous as this may sound on its face, the representations may "ring true" when framed in the proper venue or manner - plaintiffs' bar presentations about "pitfalls" to avoid, selective representation of facts about claims that were denied, etc. - but that does not make them so. Adverse parties that obtain access to this information are bound by strict confidentiality orders concerning the information they may disclose, so they may not be able to fight this particular P.R. battle even when they know the facts are being misrepresented. And the information available publicly is, at best, sparse. In short, the evidence framing these debates is mostly anecdotal and inevitably far from complete - self-serving representations about the "true" state of affairs, largely unhelpful macro disclosures concerning operations, and "common sense" assessments of how trust distribution procedures seem to work.

If we are going to continue to rely upon privately-designed and administered trusts to address the asbestos injury and litigation crises, we need sufficient information made available for PUBLIC discussion. The parties that design these trust procedures again and again are in the best position to ensure that this happens. It's one thing to be forced to rely on anecdotal evidence because that's all that is available; it's another when that's all you choose to make available. Indeed, as we saw in the asbestos injury conspiracy, it speaks volumes about the reliability of the "evidence" deemed suitable for public consumption.

May 20, 2009

Administered compensation and the Feres doctrine

"An effort to overturn a 59-year-old Supreme Court decision barring service members from suing the government for negligence inched forward Tuesday when a House subcommittee approved the Carmelo Rodriguez Military Medical Accountability Act." [Navy Times] The Norfolk Virginian-Pilot is also lending a reportorial hand to the plaintiffs' cause. The legislation would curtail the Feres doctrine, which restrains uniformed personnel from filing negligence lawsuits against the armed services. In effect, the doctrine requires that injured personnel be content to accept whatever benefits package the armed services (and ultimately Congress) choose to provide for death, disability or other losses (earlier here and here).

It seems to me that the controversy over Feres repeal would make a good place to draw a line in the sand for those who favor administered-compensation alternatives to medical liability litigation -- whether that happens to mean the Harvard-style school of no-fault proposals with relatively generous definitions of eligibility, or the Common Good emphasis on health courts with credible expertise on causation, or the various other possibilities modeled on vaccine or infant-brain-damage no-fault programs, workers' comp, New Zealand social insurance, or European practices. If administered compensation without the high overhead and acrimony of litigation can't work in the context of military medicine -- in which the parties already have intense and ongoing legal relations with each other, in which complications arising from multiple sources of health care are at a minimum, and in which the prospective defendant is already providing a comprehensive, lifelong package of benefits to the prospective plaintiff -- then it probably can't be made to work anywhere.

Of course the lobbying push in Congress never seems to take the form of "let's liberalize benefits for service families who find themselves in this situation, but in ways that don't require them to go through lawsuits". It's almost as if expanding litigation is a goal in itself.

April 2, 2009

New Zealand's unique injury compensation system

It's contrasted with Australia's more conventional one in a paper by Harold Luntz (Melbourne) on SSRN (via Robinette).