class actions, disabled rights, copyright, attorneys general, online speech, law schools, obesity, New York, mortgages, legal blogs, safety, CPSC, pharmaceuticals, patent trolls, ADA filing mills, international human rights, humor, hate speech, illegal drugs, immigration law, cellphones, international law, real estate, bar associations, Environmental Protection Agency, First Amendment, insurance fraud, slip and fall, smoking bans, emergency medicine, regulation and its reform, dramshop statutes, hotels, web accessibility, United Nations, Alien Tort Claims Act, lobbyists, pools, school discipline, Voting Rights Act, legal services programs
 Subscribe Subscribe   Find us on Twitter Follow POL on Twitter  
   
 
   

 

FEATURED DISCUSSION
MEDICAL JUDGMENT


Discretionary immunity for medical professionals

By Ted Frank
Posted on July 10, 2006, 08:45 PM

Hi, Peter; we’ve had pleasant discussions before, and I look forward to this one.

I’ve long been frustrated by the state of medical malpractice: cases like this, these, or this. These cases are more than just anecdotes. First, the big-money awards, even if they are outliers, distort the system for everybody, because insurance is based on expectations and worst-case scenarios (which are arithmetic means and variance) rather than the medians that so many statisticians use to argue there is no problem with the system. But they also reveal an underlying randomness that disturbs one sense of justice. Even if one believes that the legal system gets it right most of the time (and even the recent study reform opponents cite shows a shockingly high error rate), the chance of a jackpot verdict encourages meritless litigation.

One partial solution is non-economic damages caps. Unbounded incommensurate damages are an appeal to a jury’s prejudices and sympathies, and cannot be rationally calculated. Replacing them with a schedule or legislatively-created bounds is a sensible solution, and one that both constrains the effect of legal errors and reduces the incentive to bring meritless litigation or litigation where the measurable economic effects are small.

But that solution is only a partial solution, because a large part of the problem is the big-money cases where doctors are blamed for the happenstance of being present for bad results. Outcome bias significantly affects even trained professionals; there is no reason to think lay juries do better. As I noted when I first raised this issue, using non-economic damages caps to reduce an erroneous $30 million verdict to an erroneous $15 million verdict is unlikely to be a satisfactory solution.

What struck me is the number of anti-reform advocates who not only argue that the status quo should not be reformed, but that there isn’t enough malpractice litigation. In his book, The Medical Malpractice Myth, Tom Baker essentially argues that there should be twenty times more malpractice litigation than there is. Baker does not seem to have thought out the consequences of his conclusion, which is that the amount specialist doctors should pay in malpractice damages and expenses should exceed the amount that doctors currently receive for giving medical care. That is, to say, that Baker’s arguments make sense only if you believe that medical care would be better off if it weren’t for all these damn doctors, since very few would continue to practice under such circumstances. Baker’s proposal ameliorates the financial effect on individual doctors (if not the additional cost of spending time performing CYA documentation and depositions) through enterprise liability, but the impact is the same: the marginal expected value of an additional doctor to an enterprise would be negative, and the costs of providing medicine would skyrocket, if not completely collapse.

Baker’s statistics are based on the Institute of Medicine study, which alleged that some huge number of deaths were attributable to “medical errors,” though the study didn’t distinguish between deaths that shortened life by a matter of minutes and those that cut short a life by years or decades. Studies like IOM’s bother me when they’re cited by either side of the debate: if IOM’s methodology for determining “medical error” is accurate, why do we not prefer it to that of the legal system? (And if one believes the small sample in the IOM study, the legal system was not much more accurate than a coin-toss.) But the problems with IOM’s methodology struck me: as Richard Anderson noted, the study determined negligence by averaging together two doctors’ assessments of the records, and disagreement was frequent. The Institute wasn’t even able to reproduce its results.

Combine the lack of consensus within the medical profession as to what optimal care is with the problem of outcome bias, and one can only conclude that the legal system is incapable of second-guessing discretionary medical decisions. And that is before we get to the inherent inefficiency of a compensation system that devotes a majority of every dollar to the lawyers and witnesses and administrators rather than the “victims.”

I am a firm believer in judicial modesty. There are some questions that the judicial system is not well-equipped to answer, and when it does try to answer them, it is at least as likely to make things worse as better, which suggests that it is better not to make the attempt at all than to impose the gigantic costs of litigation in achieving a random walk in public policy.

In my series of posts, I noted the “business judgment” rule, (a comparison I’ve since discovered doesn’t originate with me), but courts abstain from interfering in all sorts of discretionary decisions besides those of business judgment for officers and directors: immunities are granted for judges, for the discretionary decisions of government officials, for volunteers, for government officers operating in unclear constitutional territory. Though legal professionals are hypothetically held to the same standard as doctors, in practice, they are granted far greater scope of immunity. In each case, the immunity is justified by the courts because of the fear of that liability would deter socially beneficial activity.

Why not give that same immunity to the discretionary decisions of medical professionals?

That is not to abolish the action of medical malpractice. When one sees anecdotes defending medical malpractice suits, they point to the cases of the inebriated doctors, the surgeons who operate on the wrong limb, the wrong medication (or dosage) issued to a patient. But these are different kind of medical malpractice than the second-guessing kind that disturbs medical professionals.

Perhaps it really is the case that the medical profession is full of butchers who can’t wait to sloppily kill their patients through negligence the second the fear of medical malpractice liability is removed. But I strongly suspect that medical quality would improve, rather than decline, from the addition of legal certainty to the process by the addition of discretionary immunity. If nothing else, the experiment would give us sound data on whether the status quo is a net positive or negative compared to the alternative.


Will Ordinary Negligence Be Considered “Discretionary”?

By Peter Nordberg
Posted on July 11, 2006, 03:53 PM

Hi, Ted. Always a pleasure.

Before greeting you at further length, I want to thank Point of Law for inviting me to participate in this discussion. I feel honored and flattered, even if I do question PoL’s wisdom in selecting me.

There have been previous discussions in this space, you see, on topics about which I might claim to be pretty knowledgeable. But for me, medical malpractice litigation is entirely a spectator sport. In twenty years of litigation practice, working both sides of the aisle, I’ve never once been involved in a medical malpractice case. Nor am I especially steeped in the policy literature on the subject. So I won’t have a lot of facts and figures to reel off, nor a lot of vignettes drawn from personal experience.

If I can contribute anything at all to this discussion, I’m afraid it will probably be my conservative streak. Our tort regime has many flaws. So does our jury system and our adversary model. But all three have very respectable historical pedigrees, and they’ve done a better job at resolving civil disputes than most of the alternatives people have tried. So when somebody comes along and wants to introduce new flora and fauna into the legal ecology . . . well, I just want to make sure everybody has thought the thing through. Call me stodgy.

By the way, I’m glad its you, Ted, with whom I’m having this exchange, because you’re a reasonably sane fellow - for a tort-reform proponent, anyway. Much of the public discourse about medical malpractice litigation is ludicrously oversimplified and overheated. Within the political arena, especially, the whole debate seems irredeemably corrupt, utterly driven by mercenary motives and unseemly agendas, dominated by propagandistic rhetoric. You, by contrast, have always tried, in my experience, to hold and defend your views on rational policy grounds – an approach I respect, even where our takes on policy may differ. You also keep the lawyer-baiting to a minimum, which I appreciate.

My throat having been cleared, what can we now discuss? Your opening post devotes substantial space to outlining problems that you see as standing in need of some solution. With much of what you say about the problems, I see no basis to disagree. There is an unacceptable level of randomness in outcomes under our current malpractice regime (just as there is, perhaps, in tort litigation more generally). Not only should that awaken our sense of injustice; it should also inspire practical concern. Even a comparatively small number of “win the lottery” verdicts may indeed have a disproportionate effect on insurance premiums (and yes, I do believe malpractice premiums to be sensitive to payouts, and the risk of payouts, in the long run, fluctuate wildly though those premiums also may in response to insurance companies’ shorter-run investment misfortunes). Those premiums, and the threat of liability, exert, in turn, a negative effect on the supply curve for medical services. The extent of that effect is an empirical question that you and I can leave to one side, perhaps, if I concede its reality and significance. Insurance costs have driven some providers from practice, resulting in underserved populations. Fear of liability leads many remaining providers to order expensive tests and procedures they otherwise wouldn’t, driving up patient costs from what they would otherwise be. Those tests, meanwhile, aren’t risk-free themselves.

The question might be why on earth, in the face of all these familiar problems, did we ever lose our minds for long enough to have a malpractice liability regime in the first place? For the same reasons, I take it, that we have tort liability in other contexts - even though tort liability often creates a similar set of problems in those other contexts, as part of the price for less visible benefits that the tort system also confers. In a nutshell, we have tort liability because even well-meaning actors can behave negligently and cause injury. Given the corporate, for-profit structure of the modern health-care industry, maybe we needn’t even assume the tortfeasor to be especially well-meaning. Dare I hypothesize that institutional providers are systematically tempted to skimp on costs, much to the frustration and alarm of the dedicated professionals they employ? I’d better not. I don’t know the literature as well as you, and if you were to suffer a momentary lapse in your customary civility, you’d surely go to town on me. But we both know this much: someone will end up bearing the cost of the resulting injuries, even if those costs are left where the injury falls (that is, with the victim). If those costs can be shifted to the tortfeasor in reasonably fair and predictable ways (“reasonably fair and predictable” being the rub, of course), that will tend to deter negligence, while also compensating the injured - results most people would see as both beneficial and just. Meanwhile, imposing those costs on the enterprise makes some sense, if the enterprise is in a better position to spread the costs, which often would be catastrophic, if left to be born by an individual.

When does it make sense, despite such considerations, to take some class of activity out of the standard negligence regime? Well, different grounds have been offered for different exceptions, some more persuasive than others. You mention the business judgment rule, various governmental immunities, and a kind of de facto immunity you believe attorneys to enjoy. Almost all of those exceptions are controversial, to one degree or another – controversial enough, in my view, that they should not be taken as the norm, from which departures would then have to be justified. There are probably compelling reasons for judicial and witness immunity, and as we’ve discussed, there may be reasonable grounds for the business judgment rule. Most of your other examples are more like anomalies that cling to their doctrinal perches by an arguably tenuous logical grip. In particular, if PoL wants me to defend special liability breaks for attorneys, they’ve come to the wrong guy. There’s a lot of bad lawyering out there, and not enough deterrence.

My question, then, would be: are there good arguments for an exception, in the case of medical malpractice? It’s all very well and good, Ted, for you to “suspect” that the quality of care would not suffer. But to a conservative like me, your “suspicion” on that front is not enough to justify what sounds like dangerous and ill-considered experimentation. (Neither is your notion that the experiment could provide interesting data, as a typhoid epidemic also might.) What if your suspicion proved mistaken? What if the problem actually does extend beyond the rhetorical caricatures about inebriated surgeons who amputate the wrong limb? Theory predicts, does it not, that the quality of care should deteriorate across the board, as disincentives to negligence are reduced or eliminated? Might prudence not suggest we first consider other, less extreme measures, short of de facto immunity, to tackle the randomness problem? Something a little more creative, maybe, and a little fairer, than miserly damage caps? And if we do that, by the way, will we also be tackling, with equal zeal and enthusiasm, the problem of patients who are harmed by inadequate care but who currently never find their way to the tort system, or any other remedy, at all? (That’s not a rhetorical bogeyman; that’s a real population, and it may dwarf the class of all current malpractice plaintiffs, if I’m remembering the literature correctly.)

I should add, in the interest of full disclosure, that if you should chance to persuade me (as is perhaps unlikely) that no measures short of de facto immunity can work, I’ll be wanting to know what alternative steps we are then going to take, if any, to protect patients from medical misadventure? Are we going to have free disability insurance for everybody? A national health care plan? I could maybe go for those. Let’s talk. Maybe we can get somewhere.


What is deterred by liability for discretionary medical judgments?

By Ted Frank
Posted on July 12, 2006, 03:44 PM

To keep the mutual admiration society going, I'll note what a pleasure it is not to have to debate basic issues like the fact that malpractice insurance rates are based on malpractice insurance costs.

1. In return for that reasonable concession by you, I'll make one of my own. I agree: increased malpractice liability will deter some malpractice, at the margin. I'll even go further and note that not all defensive medicine is unambiguously bad; while some defensive medicine imposes costs and adds health problems, other defensive medicine merely inefficiently improves health outcomes.

2. The issue though, is not minimizing malpractice, but maximizing health outcomes. And there's every reason to believe that, at the margin, malpractice liability for discretionary decision-making deters not just medical malpractice, but medical practice. The reason is because, for the class of lawsuits we're discussing here--the ones that don't involve drunk doctors or those who amputate the wrong leg--the lawsuit is based upon second-guessing the decision of the doctor. This doesn't incentivize the doctor; in a number of suits, the doctor faced with the same decision would do the exact same thing. The deterrent effects are perhaps to increase defensive medicine or time spent documenting CYA notes to patients' charts instead of practicing medicine. Or to leave medicine entirely.

3. To illustrate this, imagine a world where police just randomly arrest people in a community without regard to guilt or innocence. Length of prison sentence or criminalizing or legalizing certain acts would be irrelevant to deterrence, because the risk of a lengthy prison sentence would go up or down equally for the innocent as well as the guilty. I'm not saying that the medical malpractice system is that arbitrary and capricious. It's not. But it's not much better. Insurers are unable to predict in advance which doctors will be sued, except within broad occupational categories. As a result, to the extent that there are "bad" doctors, they're not treated much differently than the good doctors, and those that are are the ones who would still be liable in a world with discretionary immunity. My hypothesis is that, because good doctors outnumber bad doctors, and because the status quo is so imprecise and inefficient, more good doctors are being deterred from practice than bad doctors are being deterred from malpractice--and the concomitant effects on health outcomes from the system are negative.

4. Empirical work bears this out. For example, Jon Klick's work finds that infant mortality rises in states without damages caps. A slight decrease in medical quality is apparently outweighed by the decrease in practicing obstetricians from the increased costs of the system.

5. It interests me when people complain about reform proposals as "dangerous experimentation." We've tolerated a substantial expansion of liability for medical professionals through judicial experimentation, in part because judicial decisionmakers are frequently looking solely at the case in front of them based on procrustean legal principles rather than the consequences of that case on the system as a whole; but John Edwards has suffered no consequences for helping to create a legal environment that has perhaps resulted in hundreds of extra infant deaths in North Carolina. (And the expansion in the field of medical malpractice is nothing compared to the experimentation the judicial branch has engaged in without empirical basis when it comes to products liability, securities litigation, and criminal procedure.) Why is the judicial branch the only one allowed to experiment? What happened to the famous laboratories of democracy?

6. A judge can cause a great deal of damage through an erroneous opinion; an executive can lose thousands of investors billions of dollars through an erroneous business decision; a do-nothing police department can cost hundreds of lives and cause tremendous damage to the local economy. Yet we accept that to impose liability in such situations would do more harm than good. The consequences of negligent medical practice in the course of discretionary decisions are not so great that it is not worth exploring redefining the lines of liability given the evidence that second-guessing discretionary decisions is causing more harm than good on the deterrence side and only randomly fulfilling compensatory principles.

7. There are certainly other alternatives: Common Good's idea of medical courts; testimony of court-appointed experts; taking cerebral palsy cases out of the legal system the way we do with vaccine injuries. But when there are serious scholars arguing that there should be more than ten times as much malpractice litigation as there is now under the current liability standards, it's time to ask what's so special and untouchable about the current liability standards.

8. But even if one is disinclined to be on the "bleeding edge" of policy-making, that's no argument against scaling down the scope of liability. We wouldn't be the first to do so. Doctors in New Zealand can't be sued, and show no evidence of erring more than their liable American compatriots.

9. How do we compensate those injured by discretionary medical malpractice? It's not clear to me that this is a prerequisite. Not every injury requires compensation. There isn't compensation for someone who keels over from a sudden brain aneurysm or is struck by lightning. The family of someone brutally murdered in Georgetown by a paroled armed robber doesn't get compensation. Sometimes the loss just falls where it does, and it's not clear to me why an adverse medical result caused by a discretionary medical decision should be any different.

10. But one answer to the compensation question is insurance. Health insurers could offer additional coverage for losses caused by malpractice, and that would certainly create a market incentive to ensure that doctors weren't committing medical errors or skimping on cost-effective procedures, and HMOs are better situated to do that oversight than courts or attorneys or individual patients. (If there really is a problem with a handful of incompetent doctors, this would be the surest way to suss them out.) Insurance would also end the controversy over damages caps: patients could choose for themselves how much insurance they want for pain and suffering.


It All Depends on What the Meaning of "Discretionary" Is

By Peter Nordberg
Posted on July 13, 2006, 01:44 AM

While we carry on our friendly little discussion, Ted, in such civil tones, the outside world is seemingly conspiring to tempt us with distractions on all sides. Shiny and glittery though those distractions may appear, I’m going to ignore them. Here on our own little discursive island, we do seem to be making some progress, you and I. Not toward full agreement, perhaps. But maybe toward a clearer statement of the issues.

I want to summarize your proposal as I understand it from the posts to date. We’re not going to have malpractice liability for medical “judgment calls.” We still haven’t decided how to draw the line between “judgment calls” and actionable conduct, but let me defer that question for a moment. Within the “judgment call” domain, we won’t have malpractice liability even for patients who suffer serious injury that was concededly caused by their medical care. Those patients will not only be denied any right to seek “noneconomic” damages for pain and suffering or emotional distress. They will also be unable to sue for their lost income or medical costs, or indeed for any damages at all. You’re willing to keep an open mind about doing something else to compensate them. We could make malpractice insurance available to health-care consumers through their own health insurance plans (at least for people who have health insurance in the first place). Or maybe we could adopt a governmentally funded no-fault compensation plan like New Zealand’s. But compensating such victims isn’t a sufficiently urgent problem, in your view, that we should condition acceptance of your proposal on alternative remedial measures. Within the “judgment call” universe, it would be okay to treat adverse outcomes pretty much the way we treat cerebral aneurysms: some people just get them, and it’s their misfortune to bear. Meanwhile, to keep practitioners on their toes about making the best choices among the reasonable “judgment calls” at their disposal, we should rely largely on the health-care industry to police itself.

Apparently, that doesn’t sound to you like a dangerous experiment. And in a way, you may have a point. In a way, your proposal sounds a lot like the existing system. In that system, after all, malpractice liability does not attach, in theory, unless the provider violated the applicable standard of care. A physician’s “judgment call” between two reasonable treatment alternatives, both of which conform to that standard, is not actionable. If a malpractice plaintiff cannot produce competent expert evidence from which a jury could reasonably find that the provider pursued a standard-violating course over a standard-satisfying alternative, the claim should already be weeded out at the summary judgment stage. Even sooner than that, potentially, in states with malpractice screening panels or certificate-of-merit requirements.

You will say, perhaps, that my description of the existing system is accurate in theory, but miserably inaccurate in practice. That may be so (although you do seem readier than I am to assume the existing system’s near-perfect randomness). My point is merely that little may be achieved by altering the nominal legal standard and leaving the system otherwise intact. Call the standard “gross negligence” or “recklessness,” if you like. I’m not sure much will change, except the courthouse vocabulary.

Mind you, issues of vocabulary can sometimes be important to people -- if not to jurors, then to people in voting booths. If political viability matters, I am curious what nomenclature you’d propose. If we’re to have legislation immunizing physicians for mere “negligence,” and permitting claims only for “gross negligence” or “recklessness,” then some pretty unappetizing statutory language will have to be unveiled eventually -- language with which even the AMA may need some time getting comfortable. Now seems as good a time as any to float the trial balloons.

But I am sorry to have injected politics into this. We’d been doing so nicely, and then I went and spoiled the mood. Please consider my ill-considered remarks just now to have been offered in the same sportively jocular spirit that presumably animated your own playful little swipe at John Edwards.

Back to serious business, then. You will also say, perhaps, that the issue is not so much the language of the standard, as the identity of the Decider. You are very explicit about your mistrust of juries in the malpractice setting, and your candor is to be commended. Of course, if hindsight bias were enough to disable jurors from making sound decisions, then we might need to take a fresh look at the Seventh Amendment more generally. But although I’m probably a much bigger fan of juries than you are, I’m not going to take any positions here that depend on blind faith in their unerring wisdom. Rather, I’m going to ask what you’re proposing to change, on the Decider front. Judges already decide whether the plaintiff’s expert evidence is admissible, under Daubert, Frye, or whatever test for expert testimony may apply in the relevant jurisdiction. Judges already decide, as well, whether the plaintiff’s expert satisfies competency requirements prescribed under state law (some of which are pretty exacting). And once the admissibility issues are resolved, judges still decide whether a reasonable jury could find that a provider’s treatment choices represented anything but a “discretionary judgment call,” as you’re terming it, among reasonable alternatives falling within the prevailing standards for acceptable medical care. That will basically remain the division of decision-making labor under any plausible “reform” regime.

To make your proposal a plausible candidate for effecting the kinds of change you’re after, it seems to me you’d need something more than you’ve yet proposed -- something along the lines of a formal codification of the standard of care for different medical specialties, spelling out the domain of acceptable medical practice in specific, substantive detail.

I’m not sure that’s a bad idea at all, by the way. Maybe some well-chosen batch of Deciders should get together, form a policy advisory panel, and define some universe of treatment choices that would be presumptively acceptable in various paradigmatic medical situations. Maybe that would be an excellent platform to get some constructive discussions going between doctors and attorneys. (We need more of those, and less rhetoric pitting the professions against each other.) Alternatively, maybe such a proposal is naive, given the overheated political climate and the reservoir of bad feeling on all sides. And maybe it’s impracticable. Given the rapid rate of medico-scientific change these days, it’s possible that this year’s hard-won consensus would soon be overtaken by next year’s new and unforeseen technological and biomedical developments.

But it might be worth a shot. I’m not talking about specialized medical courts, here. Those might or might not be able to foster the speedy evolution of an enlightened de facto codification. But we should not be asked to buy a protocol in a poke. If it’s really so straightforward a matter, among knowledgeable professionals, to define the realm in which reasonable “judgment calls” should be permitted to operate, then it seems fair to ask for the definition going in.

Who’d have thought it would come to this, Ted? Here I am, actually trying to take your proposal, run with it, and make it workable. Note to self: ask PoL’s management whether that’s allowed.

Aspirational politics

By Ted Frank
Posted on July 20, 2006, 02:45 PM

Peter, my apologies for the delay in posting.

The idea of a top-down "safe harbor" for medical malpractice is one that's been discussed elsewhere. I worry that such centralized planning, implemented on a widespread basis, might ossify medicine and make innovation difficult or impossible. It seems to me that it can only help on the margins, in some narrow areas, though the savings and improvement in health care might well be significant. At the level of implementation, however, the questions become one of medicine, rather than law, and I defer to the doctors on the ultimate wisdom of the scope of such proposals, and I haven't seen enough on the pro or con side to know whether they'd be efficacious or worth the candle.

You raise a good point about the political feasibility of a wholesale change in medical malpractice law. The trial bar is a powerful interest group that is successfully blocking smaller incremental improvements. But, as we discuss public policy, I'd rather start with what we want an ideal system to look like before we resort to what the second-best measures are in the universe of the feasible. If everything came down to popularity, you and I would have to shrug our shoulders and replace evolutionary biology with the study of astrology and angels in public schools.

That said, it's not clear that I'm proposing anything that couldn't be passed in a generation, especially as more data comes down the pike about the costs and unworkability of the status quo. Tax simplification and airline deregulation must have looked politically impossible once upon a time.

Would "No doctor shall be held liable for his or her good-faith reasonable discretionary decisions in the practice of medicine" really be so troubling to the average voter? I think that appeals to people's fundamental sense of fairness. When I see ATLA and its Orwellian successors complain about medical malpractice reform, the examples they use of horror stories—body parts erroneously amputated and so on—wouldn't fall within this exception.

And I disagree with you that such language would require a top-down codification before it could be imposed. We don't need top-down codification in the business judgment context or for immunity for discretionary governmental decisions. The language I propose would simplify medical malpractice cases considerably. Early summary judgment would be possible in many a case, much as it is in the business judgment context, and the change in the legal landscape would change the cases that are brought.

There's a danger any reform not well implemented will be "leaky" through the efforts of creative attorneys or recalcitrant judges, so I don't pretend that this language is more than a first cut that could be improved. But we have time to perfect that between this initial discussion and the point when the political process is ready to consider more creative solutions.


Aspirational Valediction

By Peter Nordberg
Posted on July 20, 2006, 04:58 PM

Our little discussion has proceeded in a reasonably cautious spirit, without attempts to rush toward premature closure. In that same spirit, I’ll offer just two brief and tentative thoughts, and then bid you au revoir.

(1) I don’t mean to make too much of the language issue, but I do think it’s near the center of a broader concern that your proposal will need to address, if it’s to go much of anywhere. You want to insulate providers from suits over “reasonable” treatment choices. That may be useful shorthand for identifying, to persons already in broad sympathy with your program, the types of medical decision that you’d like to see immunized. To draw an analogy with Justice Stewart’s famous “Casablanca test” for pornography, your constituency presumably knows a reasonable treatment decision when it sees one. But if immunity for “reasonable” choices really worked as an operational definition, capable of consensual application within the judicial system, then the existing system would closely approximate your proposed reform, because it too conditions liability on an unreasonable departure from the standard of care. To implement something different, you’ll need to specify the difference somehow. Seemingly the word “reasonable,” as the current term of legal art is understood, would have to part company with the liability standard. Either that, or else some new meaning would have to be given to it, if not through “top-down” safe harbors then via some other means. That’s a practical issue as well as a political one.

(2) One reason it’s a difficult political issue, I think, is that both camps in the medical malpractice debate have done a lot to earn the polity’s mistrust. If proponents of medical malpractice “reform” wanted advice from the likes of me, I’d tell them that when public policy debate is characterized on both sides by exaggerated claims and overheated rhetoric, the resulting public skepticism can operate asymmetrically in favor of the status quo. I’d also tell them to dig out a copy of Revolution and listen closely to the lyrics. If “reformers” begin to acknowledge more conspicuously that prevention and compensation are also issues calling for thoughtful attention, maybe they’ll begin to win over more centrists. But if they go carrying pictures of Chairman Mao...

Well, you're no Maoist, Ted, and it has been a pleasure talking this through with you. I’ve learned a couple of things, and I’ll follow your idea’s progress and development with interest. Thanks for treating me in such gentlemanly fashion despite my irritatingly hidebound mindset. My thanks, as well, to Point of Law, for giving me the opportunity to chat with you in this space. Let’s do it again.

 

 

 

 

FEATURED DISCUSSION ARCHIVE:


Obamacare Decision: Reactions, July 2012
Law School Faculty Diversity, May-June 2012
Class Actions, May 2012
Constitutionality of Individual Mandate, March 2012
Human Rights and International Law, February-March 2012
The constitutionality of President Obama's recess appointments, January 2012
Do caps on medical malpractice damages hurt consumers?, December 2011
Trial Lawyers Inc.: State Attorneys General, October 2011
Wal-Mart v. Dukes, April 2011
Kagan Supreme Court nomination, May-June 2010
Election roundtable, November-December 2006
Who's the boss, September 2006
Medical judgement, July 2006
Lawyer Licensing, May 2006
Contingent claims, April 2006
Smoking guns, July 2004

Isaac Gorodetski
Project Manager,
Center for Legal Policy at the
Manhattan Institute
igorodetski@manhattan-institute.org

Katherine Lazarski
Press Officer,
Manhattan Institute
klazarski@manhattan-institute.org

Published by the Manhattan Institute

The Manhattan Insitute's Center for Legal Policy.