Blog 702 reports a new study on award caps and medical malpractice insurance rates. The study seems to indicate little correlation. PN notes a new tendancy among "tort reformers' to argue that the real problem is the cost of defense of meritless suits. Certainly there is such a cost, and certainly it is significant, the way things stand. But I cannot see any connection to award caps or to (misnamed) tort reform. Those costs are controllable by insurers -- they should by now have a very good basis for determining meritless claims early on and making appropriate litigation decisions, including nuisance settlement. Like most repeat players, the corporate entities can (and should) develop tools to allow early and relatively accurate assessment of cases. If insurers choose to spend a lot of money litigating, it is hard to see why anyone other than their shareholders should shoulder the burden. Plaintffs' counsel are fairly well organized, and it does not take all that long to figure our reasonable settlement values. (Moreover, assuming the cases are largely contingent fees, plaintiffs' counsel have a strong incentive to make accurate assessments of settlement value.) Malpractice does not look to me to be a field in which there are longer term strategic issues which should outweigh individual case decisions. (Cf. securities litigation, where it many of the same players over and over.)
I have biases here. I represent mostly defendants, and always have. And I have represented insurers, althoguh not in this area of law.
The University fo Utah sponsored a public discussion of the topic last night. The panel consisted of a defense lawyer, a plaintiff lawyer, a couple of doctors, and an officer of an insurance company. I don't wish to be churlsish, but it is not easy to see why that panel composition would have much to say of interest. The issues really revolve around effects across several systems and demand moderately sophisticated economic analysis. But no economist was involved, The insurance company employee may have had some useful information, but I don't see why a lawyer or an ob would contribute anything very useful to the discussion. But I am speculating. It was raining and I had been awake since 3:50 that morning. I went home to eat and sleep. Dog agreed with me when I talked to him about it.
Of course, it might help if the medical community put some serious effort into reducing the amount and impact of malpractice.