Schiavo and tort reform

How would “tort reform” have influenced the Terri Schiavo malpractice settlement?

A reader asks a question to which I don’t know the answer:

Has anyone figured out how Bush’s proposed medical malpractice reform legislation might have impacted the one million dollar settlement that Michael Schiavo received in 1993, and which has paid for Terri’s care the last 12 years?

Actually, my understanding is that the settlement fund is mostly empty, and that Medicaid has been paying for the last two years. But it’s still a damned good question, and I’ll be happy to post any expert answers I receive.

Just one thing to ponder, though: It’s entirely possible that Terri Schiavo’s heart attack didn’t, in fact, result from malpractice. The claim, as I understand it, is that her physician negligently failed to diagnose her anorexia, and I’m not sure how feasible that would have been: or, for that matter, whether her physician had a better chance of observing abnormalities in her eating behavior than, say, her husband or her parents.

The real outrage of the current system is that her ability to get health care depended on finding that some health care provider had made a culpable mistake. Under a more civilized system, we’d take care of the victims of bad medical outcomes regardless of whether any provider had been legally at fault, and have a separate mechanism to identify and discipline physicians and others who provide substandard care.

Update and answer to the query

Jonathan Zasloff of UCLA Law School writes:

Bush proposes to cap “pain and suffering” damages at some number, somewhere around $250,000. Pain and suffering damages are not medical expense damages–they measure two different things. So strictly speaking, the standard tort reform proposals, which focus on pain-and-suffering damages, wouldn’t have affected the Schiavo case.

But anyone who knows about how the tort system works will realize that pain-and-suffering damages function to compensate the plaintiffs’ attorneys. Thus, the tort ” reformers’ ” focus on pain-and-suffering damages is about trying to reduce lawsuits by making such claims uneconomic for lawyers to bring. So caps and pain-and-suffering damages quite possibly could have made Schiavo’s claims uneconomic for her original plaintiffs’ attorney.

The other option for a plaintiffs’ attorney, of course, is to take his or her fee out of the economic damages, of which medical expenses are one aspect. But if the Schiavos’ attorney had done that, the care fund would have been smaller, and Terri Schiavo would have gone onto Medicaid somewhat earlier.

Some tort “reforms” are even harsher–capping all damages, restricting contingent fees (so much) for economic liberty and freedom of contract) etc. Other tort reforms make a good bit of sense, and thus are–predictably–not even on the policy horizon.

Real tort reformers, like Jeffery O’Connell at UVA and Clark Havighurst at Duke, have proposed systems whereby there are “Designated Compensable Events,” i.e. traumas that are readily recognized as stemming from negligence, and in those situations, plaintiffs would have powerful incentives to accept early settlement offers and powerful disincentives to drag matters out.

There are all kinds of real, legitimate tort reforms; what Bush and the GOP are proposing do not come anywhere close to them. Enterprise liability for hospitals would be the easiest reform; medical no-fault would probably be the best.

But of course these are designed to help solve problems. As Krugman has accurately remarked, this administration doesn’t want to solve problems: it wants to use them.

Author: Mark Kleiman

Professor of Public Policy at the NYU Marron Institute for Urban Management and editor of the Journal of Drug Policy Analysis. Teaches about the methods of policy analysis about drug abuse control and crime control policy, working out the implications of two principles: that swift and certain sanctions don't have to be severe to be effective, and that well-designed threats usually don't have to be carried out. Books: Drugs and Drug Policy: What Everyone Needs to Know (with Jonathan Caulkins and Angela Hawken) When Brute Force Fails: How to Have Less Crime and Less Punishment (Princeton, 2009; named one of the "books of the year" by The Economist Against Excess: Drug Policy for Results (Basic, 1993) Marijuana: Costs of Abuse, Costs of Control (Greenwood, 1989) UCLA Homepage Curriculum Vitae Contact: Markarkleiman-at-gmail.com