June 30th, 2009

The False Premises of Medical Malpractice “Reform” (Response to Richard Epstein in WSJ)

There’s an old saying, “garbage in, garbage out.” If you use a false premise to substantiate an argument then the result will be worthless. And that is exactly what University of Chicago law professor Richard A. Epstein does today in the Wall Street Journal (via PofL).

His column How Other Countries Judge Malpractice pretends to support the “reform” of problems in the medical malpractice system. But he supports his arguments with some whoppers and fallacious arguments that don’t hold water.

Whopper #1, Epstein writes:

“American courts commonly think it proper for juries to infer medical negligence from the mere occurrence of a serious injury.”

This is just flat out false, and every competent lawyer that tries malpractice cases for either the plaintiff or the defendant knows it. Litigants must show — at least in NY, where I practice, and where Epstein is now a visiting professor at NYU — specific deviations from care. The jury gets a special verdict to decide if the exact deviation from practice occurred. Epstein does not identify even a single jurisdiction that allows a court to commonly infer negligence from a bad outcome. Not even one.

Whopper #2, Epstein writes:

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.

Once again, Epstein misses the mark, at least in New York. For a jury must not only return a verdict regarding a specific act of negligence, but they must also find that that specific departure was a substantial cause of injury. If Epstein knows of jurisdictions that allow verdicts without showing a casual connection he should mention them. He does not.

Epstein has an impressive resume. He teaches. He writes. But nowhere in that lengthy summary of ivory tower achievements does he discuss how many juries he has picked or how many times he’s tried to convince a jury to bring back a verdict based on the silliness he propounds.

Epstein also identifies four “procedural features that drive up malpractice costs.” They are:

The first is jury trials, which can veer out of control and in any case introduce significant uncertainty.

This “procedural feature” is called a constitutional right. The Seventh Amendment‘s right to jury trials in civil actions (and statewide equivalents) is what Epstein is actually complaining about. I reprint the federal version here so that he doesn’t have to look far for it:

In Suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury, shall be otherwise re-examined in any Court of the United States, than according to the rules of the common law.

Epstein’s real problem isn’t with some procedural feature, it’s with the Bill of Rights and our nation’s founders and the desire to disperse power away from power-hungry governmental types and put it in the hands of the people. And as to uncertainty with jury verdicts, an alternative system does not ameliorate that issue. Someone somewhere still has to decide the issue. And that person (or people) will come with biases.

The second “procedural feature” is the:

“contingency-fee system, which allows well-heeled lawyers to self-finance litigation.”

Of course, if the lawyers didn’t fund the litigation, no one except the rich could bring a suit. Allowing others to fund the litigation when they see a cause worth fighting — and risking their own money for — is what keeps the courthouse doors open. Does he want to force those that have already been victimized by malpractice to fund the lawsuit as they also wrestle with paying the mortgage while incapacitated? That’s a great way to give immunity to those that were negligent.

The third “procedural feature:”

“…is the rule that makes each side bear its own costs. This induces riskier lawsuits than are undertaken in most other countries, such as Canada, England and most of Europe, where the loser pays the legal costs of the winner.”

We return again to the concept of keeping the courthouse door open. If you want to strip away the rights of the citizenry, this is the way to go. Those of modest means simply won’t be able to bring suit. (And it also may end out rewarding those that are less than honest on the witness stand, causing the injured party to be victimized yet again.)

Epstein trumpets the fact that in other countries there are fewer lawsuits as a result of “loser-pays.” But that just means that victims can’t afford to bring the suits and they are forced to bear the costs and burdens of the negligence of others.

The fourth is:

“…extensive pretrial discovery outside the direct supervision of judges, which occurs far more readily here than elsewhere.”

I’ve never heard of discovery that didn’t have judicial oversight in the event of abuses. Epstein doesn’t provide a single reference to any jurisdiction where this allegedly occurs.

Epstein also complains about the cost of litigation. Here is one way to put the brakes on it in New York: Let interest on the judgment run from the date of the malpractice. As it stands now, interest only runs from judgment, which is usually years later. Defendants, their lawyers and the insurance companies profit by dragging the lawsuit out and running the meter. (See: No, your medical malpractice case will NOT settle fast) If they knew they would have to pay interest from the time of the malpractice, they would likely take a different view of things.

In sum, Epstein fills his opinion piece with a call for “reform” that is based on little more than unsubstantiated cliches. I expect better from someone that calls himself a law professor.

Remember what the definition of tort “reformer” actually is: Someone that has never been seriously injured by the negligence of another. You can see some profiles of tort reform hypocrites at this link: Do Texas Med-Mal Damage Caps Work? (What Do You Mean By “Work?”)
More from John Stossel at ABC, who supports “reform,” even though he had no hesitancy himself in suing another for injuring him. Some “reformers” are cured when they see the consequences of their actions, but others, like Stossel, seem to stick with “tort reform for thee, but not for me.”

Links to this post:

maxwell strikes back
maxwell kennerly’s litigation and trial blog is a must-read for lawyers who practice civil litigation of almost any type. his posts are timely, thoughtful, and relevant. take this post, “‘how other countries judge [medical] malpractice

posted by jday@dayblair.com (John Day) @ July 02, 2009 5:39 AM

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.
posted by Walter Olson @ June 30, 2009 8:17 AM