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A mild disagreement with Michael

I hate to use the bully pulpit of the blog to pick nits, but I have to disagree with the conclusions Michael Krauss draws from the good news about cancer mortality.

It's a non sequitur to say that because cancer deaths are going down, liability shouldn't be going up.

Liability has multiple dimensions: there can be more liability because there are more suits on existing causes of action, because the range of damages has increased in existing causes of action, or because of expansion of the scope of liability in new causes of action. If we're to look at the question of the liability crisis, I would strongly suspect that the second and third dimensions far outweigh the first dimension, which may even cut in the opposite direction.

Only a small fraction of suits are over cancer. That the number of cancer deaths are going down is maybe a tiny factor in the first of those dimensions. And a factor that cuts both ways at that. There may be liability for causing cancer (though, as the Wall Street Journal notes, the vast majority of cancers are of natural origin), and one would expect that to go down. But improvements in early detection and in treatment mean that the consequences of medical malpractice are greater than ever in this area. A mistake in detecting cancer fifty years ago was usually moot; today, it can be the difference in life and death. Too, because most cancer deaths are natural, the decline in cancers creates other opportunities for non-cancer liability; the cancer survivor has some non-zero chance of being injured in an auto accident and blaming the manufacturer.

There are clearly many different factors going into the equation of the liability crisis. I think it's a mistake to single out the trend of a single one of those factors and demand that the entire picnic basket move in the same direction as that ant; there are too many good arguments about the problems caused by liability expansion to be making specious ones that the opponents of reform can easily knock down.



Rafael Mangual
Project Manager,
Legal Policy

Manhattan Institute


Published by the Manhattan Institute

The Manhattan Insitute's Center for Legal Policy.