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Epstein's Reform Proposal
06/30/2009 1:21 PM
Richard Epstein too often makes the mistake of thinking the public is as smart as he is. His reform proposal today is so complicated.
As always, Epstein raises valid points. Its interesting that "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." But I can't imagine how reformers can change American judges' attitudes.
The best reform, loser pays, he buries as "a third procedural feature."
But loser pays, the rule in the rest of the world, would make the most difference.
I also find interesting this thought from one of his readers: "Why should we be allowed to sue people over their good faith efforts to help us? Let's do away with all medical malpractice suits. Replace them with criminal penalties for deliberate or wanton malpractice."
June 30, 2009 in Lawyers | Permalink | Share | User Comments (6)
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Though I fervently hate hyper-litigiousness in our society, I can't see clear to eliminating medical malpractice suits altogether. While it may be good and just to send the negligent doc to jail, that doesn't necessarily do anything to defray the utter financial ruin that their negligence can visit on a person or a family. Lose pays is a good step, and we must tighten up malpractice laws to prevent abuse, but we can't do away with malpractice lawsuits altogether, because sending the offender to jail won't prevent the bankruptcy and life-ruination that may follow depending on the nature of the damage done.
Posted by: shane | Jun 30, 2009 2:40:41 PM
Sadly, this satirical headline reveals what President Obama has essentially done my foreclosing the option of somehow limiting "sky's the limit" medical malpractice awards: "Obama Plan Calls for Making the Health Care System More Efficient by Having Trial Lawyers Provide Medical Services More Directly": http://optoons.blogspot.com/2009/06/obama-plan-calls-for-making-health-care.html
Posted by: Lee Peters | Jun 30, 2009 3:11:10 PM
In response to the first comment: you neglect to mention that we need very good juries to decide if a doctor was actually negligent. what may appear negligent to the you and I might actually be protocol. How about a special court for medical cases?
Posted by: W | Jun 30, 2009 3:55:43 PM
It occurs to me that any operation is bought in two parts. One part is the cost of the operation, the other is the cost of insuring that the operation goes successfully.
If you were to separate the two pieces so you could either buy a) the operation with no recourse for malpractice or b) the operation WITH recourse for malpractice then we could have our cake and eat it too.
People that are OK with taking the tiny risk of having an operation go bad could choose the same operation at a diminished price, while people that were worried about the outcome could insure against that probability for the cost of the operation + the insurance.
Posted by: Momento Mori | Jun 30, 2009 4:42:46 PM
"But I can't imagine how reformers can change American judges' attitudes." Actually that's easy. If the state legislature passes a law that says jurors cannot find that the doctor caused an injury without evidence of specific harmful acts by the provider then the defendant's attorney will use that to his benefit during trial. If the judge fails to enforce the law it is reversible error.
Posted by: DLP | Jun 30, 2009 8:39:29 PM
I'm all for loser pays, but I would limit the circumstances. Since civil lawsuits only require the winning side to be "more likely than not," i.e., 50.000000001%, it would have a chilling effect on a lot of legitimate lawsuits. I would favor an alternative; maybe let the jury decide if the facts were insufficient to justify the lawsuit, and THEN make the loser pay. I.e., in some cases, you could lose the lawsuit, but not have to pay the other side's costs if the jury found the facts were reasonable enough to bring a lawsuit, but not good enough to rule in your favor.
Posted by: Ann Weiss | Aug 25, 2009 10:34:38 AM
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