Litigation

A separate thought on Farber-White and medical malpractice

By Ted Frank

Svorny says "Farber and White's evaluation of the tort system suggests it is well-situated to make judgment calls."

Svorny looks at the Farber-White study and sees a medical malpractice system that's working. I look at that exact same study, and see a world where medical malpractice law are so vague and indeterminate that in over 30% of the cases, internal experts hired by the defendant can't consistently determine whether legally-actionable malpractice has occurred; a regression model with the advantage of hindsight predicts only 40% of variation of settlement amounts even with the artificial kluge of regressing on a logarithm to depress variance; and the majority of malpractice cases brought are not good cases. That's aside from the fact that Farber-White had such a small sample that it didn't even include a single jury verdict for plaintiffs, much less one of the uncapped multi-million-dollar variety that can be so distorting. That level of randomness and indeterminacy demonstrated by Farber-White is not at all inconsistent with anything I've said, since, once again, I'm not claiming that the malpractice system is as random as a coin toss, just that it is sufficiently haphazard that the system does more harm than good at the margin.

Full post as published by Point of Law on December 16, 2011 (boomark / email).