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Epstein: "How Other Countries Judge Malpractice"

Richard Epstein surveys the ways other systems handle litigation, and medical litigation in particular:

Even these features [jury trials, contingency fees, lack of loser-pays, extensive lawyer-driven discovery] aren't the whole story. American judges frequently let juries decide whether honest mistakes are negligent. Judges in other nations are less likely to do so. American courts commonly think it proper for juries to infer medical negligence from the mere occurrence of a serious injury. European judges usually will not.

American plaintiffs are sometimes spared the heavy burden of identifying particular acts of negligence, or of showing the precise causal connection between a negligent act and an actual injury. Lastly, damage awards for lost income and medical expenses in the U.S. tend to dwarf awards made elsewhere -- in part because governments elsewhere provide this medical care from their nationalized systems. In sum, the medical malpractice system provides incentives for plaintiffs that really do matter. Americans, for example, file claims about 3.5 times more often than Canadians.

It's not clear what we're getting from our exorbitantly expensive way of doing things:

More disturbingly, a careful 1992 study by Donald Dewees and Michael Trebilcock in the Osgoode Hall Law Journal concluded that the frequency of medical malpractice in Canada was about the same as in the U.S. -- for about 10% the total cost. In other words, our costly system doesn't seem to do much to deter malpractice. On medical malpractice at least, Canada does better than we do.

More: Some thoughts from MedRants (citing this 2003 Medical Economics piece by Robert Lowes) and from John Stossel. And Eric Turkewitz takes issue with many of Epstein's contentions, deeming "flat out false" the assertion that courts commonly allow juries to infer medical negligence from injury, and saying Epstein "misses the mark, at least in New York" in asserting that juries need not link up particular negligent acts with injury. Max Kennerly echoes these criticisms and adds others as well. And yet more criticism: Day on Torts.

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Rafael Mangual
Project Manager,
Legal Policy

Manhattan Institute


Published by the Manhattan Institute

The Manhattan Insitute's Center for Legal Policy.