Talk:Tort reform

New page start

Believe it or not, the subject of tort reform goes far beyond the shores of the States, so I thought that I should start a new page in its own right. The interesting feature is how the debates have diverged, and I would welcome contributions to help write this properly. I've tried to identify the salient features of the debate, and then I've left some sections below to be filled with what different countries have actually proposed, or what the nature of contention is in those jurisdictions. It's a fascinating topic. Please bear with me to fill up the notes section - all assertions I've made are accurate, and I'll get round to showing it with references when I can. I thought it was just important to have something there rather than nothing at all. If there are any corrections, please go ahead. I'd be glad to have some knowledgeable people to work with! Wikidea 02:13, 25 February 2008 (UTC)

Style

I should add, because of the nature of the subject, I think the page has necessarily to be written in a discussive form. In other words, we're dealing with arguments against and for reform, and between arguments for one kind of reform against another kind. It's important therefore to balance the script with what is said on one side against what's said on another. If parts sound like they're from any particular POV, that was not at all my intention! I'm happy for suggestions and to rewrite whatever's felt to be unbalanced. Wikidea 02:19, 25 February 2008 (UTC)

The Picture

Is the picture for this article a joke? It seems pretty ridiculous, if you ask me. ~ Dancemotron (talk) 04:22, 6 March 2008 (UTC)

Well, I wouldn't say it isn't meant to be humourous, but surely there's a serious purpose. It is, after all, a page about accidents. And look, there is someone who's had an accident! Can you find a good photo instead? Wikidea 09:35, 6 March 2008 (UTC)

http://www.house.gov/jec/tort/tort/fig-3.gif seems more appropriate.~ Dancemotron (talk) 02:20, 7 March 2008 (UTC)

Not really. It only goes up to '93 (i.e. it's a decade and a half old), it's only for the US and it doesn't appear to be adjusted for inflation. Wikidea 11:19, 7 March 2008 (UTC)

Well, whatever. The current picture seems pretty stupid. It's like having a picture of a briefcase on the page for lawyers with the caption "Lawyers use these".Dancemotron (talk) 18:40, 7 March 2008 (UTC)

Accurate statistics

Does anyone have access or a reference for a comparison of international medical negligence numbers? The real problem with things like this is (a) negligence can be covered up in systems which are not transparent (b) the negligence numbers depend on what the jurisdiction's view on causation is (c) central authorities undoubtedly do not want people to release the figures - those who publish figures will usually want to show a system needs reform (in either direction). Wikidea 12:07, 11 April 2008 (UTC)

Edits in favor of neutrality/balanced viewpoints

^{Superscript text}

I have made some fairly extensive edits to try to balance the viewpoints on the page. I should introduce myself by saying I am an American law grad who has studied tort reform extensively, including a seminar at Magdalen College, Oxford.

The main edits are as follows:

1- I have eliminated or added counterbalancing viewpoints to offset viewpoints that essentially boil down to "juries are worse than judges".

2- I have eliminated references to a high rate of punitive damage awards in the U.S. In reality, punitive damages are awarded in fewer than 5% of verdicts in tort claims, and fewer than 2% of tort claims result in a verdict in the first place, so you can do the math. The bottom line is that, except in cases of particularly egregious conduct [i.e., intentional assault, egregious drunk driving, rape, etc.], punitive damage awards are a non-factor in settlement negotiations and are not even requested in pleadings as to do so would be frivolous. Typically punitive damage awards are a small multiple (1-3 times) the ordinary damages awarded, although there has been an increase in very large verdicts (which are nearly always reduced by teh court anyway).

3- Article said that the contingency system encourages plaintiff's lawyers to take borderline cases. Nothing could be further from the truth. A plaintiff's lawyer who is on contingency is motivated to select cases with a high likelihood of success, otherwise the attorney doesn't get paid. If the work is hourly, the attorney could care less what happens, because they will get paid either way. The person who is incentivized to pursue a crappy case is the plaintiff, who doesn't have to put any cash outlay into the lawsuit [other than the court costs, which can be substantial], but the plaintiff doesn't know the difference between a good and bad case anyway and mostly relies on the lawyer to guide them, hence, contingency encourages only solid lawsuits, not weak ones.

4- I have clarified where the discussion is really refering to UK tort law. So far there are no allegations of a compensation culture in the US, at least not in the mainstream dialogue on tort reform. We might have a similar concept, but here people refer to it as "personal responsibility". 24.219.30.152 (talk) 01:16, 3 May 2008 (UTC)

Hmmm, I'm going to have to think about some of these changes. I think you've deleted some referenced material, which should probably stay. And also, some of the things you're saying, I'm afraid you just might be wrong on (like the lovely economic theory of the contingency fee. And also American spelling!). One thing in particular that interests me is that Peter Cane's mention of the 80p for £1 of tort compensation is disputed, because we can't calculate pre-trial transaction costs. Who says that, and where? If you could give the reference, then I'd be grateful (though I don't have much time for the Law and Economics bunch, which is what it sounds like). The cost of the tort system I think is beyond dispute (hence the tort reform debate!) - think also (which isn't in there yet) about the amount of time it takes in the States to bring a case, rather than somewhere like Germany. It doesn't seem you're registered to talk to though! Wikidea 10:28, 3 May 2008 (UTC)

Unsubstantiated?

The fist paragraph makes an unsubstantiated claim. "there has been a general increase in compensatory awards over time." That statement is completely baseless without reference to legitimate studies which have concluded such. Moreover, the lack of studies suggesting there has been an increase in compensatory awards is an issue that is central to a fundamental understanding of tort reform. Making such an assertion without reference to objective and verifiable studies concluding the same frame this issue in a bias and distorted way which make it intellectually dishonest. —Preceding unsigned comment added by 68.8.63.99 (talk) 04:57, 27 June 2008 (UTC)

You have your reference. I guarantee, there's no intellectual dishonesty. I think that you're mistaking higher awards for the same injuries (which there certainly are as well) for a broader point: there is an upward trend in what you can claim for and against who. The unholy trinity of defences to negligence in workplace accidents for instance (common employment, contributory negligence, volenti) which were done away with in the UK. I would suggest that you read the page and learn something before bashing off some ill conceived remark. Wikidea 12:29, 27 June 2008 (UTC)

Another image...

...is that Gilbert and Sullivan image REALLY an appropriate image for a "Trial by jury" ? 68.39.174.238 (talk) 19:06, 30 August 2008 (UTC)

My poor pictures have come under so much criticism in this article! I was only doing the best possible with what the Wikicommons had to offer. It isn't such a bad one though is it? In fact, it's even entitled "Trial by Jury"! Wikidea 02:09, 31 August 2008 (UTC)

Regarding the personal injury image, it's been removed. Your other images all fit very nicely, especially the wet floor sign, but I don't see how a picture of an orthogonic cast fits here. -- Logical Premise ^Ergo? 21:26, 16 October 2008 (UTC)

It fits because personal injury is the core problem in tort reform. Surely that's exactly what the intro says. I don't mind a better alternative being suggested, but I do insist you find an alternative. Quite a lot of tort textbooks have pictures of broken legs on the front - that's why I had the idea. Wikidea 14:38, 18 October 2008 (UTC)

As per your request, I have done so. Please revert if you feel the image is inappropriate to the article. -- Logical Premise ^Ergo? 00:04, 20 October 2008 (UTC)

My tort casebook doesn't really have any illustrations. Oh yeah, and LP, I like your new image. Non Curat Lex (talk) 00:31, 20 October 2008 (UTC)

Ah well, we're just more colourful than you are in the States! Thanks for replacing the image rather than deleting it. This one's a bit more morbid, but if it makes people happy that's good. :) Wikidea 08:49, 21 October 2008 (UTC)

POV problems

This article needs complete rewriting. It's a single editor's personal essay and opinions about tort reform, and not a discussion of the issue. THF (talk) 03:56, 2 January 2009 (UTC)

It's also wildly inaccurate in places. The Supreme Court's denial of cert in Philip Morris USA v. Boeken (which is spelled wrong in the article) had nothing to do with punitive damages; the appeal was over FTC preemption. THF (talk) 04:00, 2 January 2009 (UTC)

You're welcome to change the speling. I don't think the article suggests the Supreme Court did decide on the punitive damages element, but you can alter anything you feel is misleading too. Do you think that you may be exaggerating a little? Why don't you change parts? Wikidea 09:13, 2 January 2009 (UTC)

"Changing things" to fix minor mistakes here and there won't fix it. The article needs a complete rewrite. History has shown that the owner of the article refuses to edit collaboratively and resists even minor substantive changes, and it's not worth the fight to me, but braver and more patient editors should rewrite this if they get a chance. THF (talk) 12:42, 2 January 2009 (UTC)

As an American tort reform professional I'm sure you have plenty of ideas. Here's your chance.

I suggest that you change something. Wikidea 13:23, 2 January 2009 (UTC)

I propose to delete the current version and start over with a stub. If that's not acceptable, then I'll let others argue with you. After seeing your tantrum at competition law, I don't have time to play your games. Also, it's offensive when you template experienced Wikipedia editors. THF (talk) 17:00, 2 January 2009 (UTC)

You're mistaken about me: I don't play games and I don't have tantrums. I contribute productively to an online an encyclopedia. Propose an alternative text - you have said absolutely nothing about what you want to see, except above, the removal of a single 'l'. Clearly, you still have nothing whatsoever to contribute. I could be wrong, but you're doing nothing to demonstrate otherwise. And no, more snide comments won't qualify. Some cases, materials, references would. Wikidea 11:15, 3 January 2009 (UTC)

As your latest remark shows, you're the one who's being snide and unproductive. I've made a proposal, you've rejected it, and since my experience at competition law shows that you revert and whine about any changes that interfere with your authorship, and insult anyone who disagrees with you, I have no interest in playing those games. I hope other Wikipedia editors show more patience, because the page is awful. You can have the last word. But the tags stay until the page gets fixed. THF (talk) 13:05, 3 January 2009 (UTC)

The more I read THF's editing, it seems he's a proponent of the destructive wholesale vaporization of wiki content. I've personally seen him attempt to justify his arbitrary personal opinion and POV with Wikipedia policy. Sorry, but I have to concur with Wikidea and side AGAINST deletion. The article could use collaboration from other editors and improvement perhaps, but where are your edits THF?Critical Chris (talk) 12:04, 13 January 2009 (UTC)

• Note that at this point, User:THF made this edit replacing the article with something resembling an op-ed for a lobbyist weekly review. Wikidea 20:52, 9 February 2009 (UTC)

The article clearly needs improvement. It cites exactly one reference. The origin of "tort reform" as a campaign issue that benefits businesses and insurance companies is completely absent. See for example The Nation or The Cambridge History of Law in America. Questionic 23:13, 13 January 2009 (UTC) —Preceding unsigned comment added by Questionic (talk • contribs)

There are several dozen references, they're just not formatted properly. THF (talk) 23:41, 13 January 2009 (UTC)

Thanks, I should have looked more closely. The reference list of one item greatly undercounts the number of external links. Questionic 16:51, 14 January 2009 (UTC) —Preceding unsigned comment added by Questionic (talk • contribs)

Looking at this article's other "references" now. First external link to a joke newspaper article about the most frivolous lawsuit contest.[1] Second, LA Times page not found.[2]. Third to Rand Institute graphic from 1991; the graphic does not support the sentence it's attached to.[3] Fourth to undated graphic based on Insurance Information Institute data.[4] Fifth to page of assertions on ATRA website.[5] If the rest of the several dozen "references" come up to this standard, I would say this article has a very serious POV problem. Questionic 17:43, 14 January 2009 (UTC) —Preceding unsigned comment added by Questionic (talk • contribs)

You are right. There are issues of both form and substance here. Non Curat Lex (talk) 00:06, 20 January 2009 (UTC)

Daniel Fisher quote

The Daniel Fisher quote is inaccurate. Several tort reforms, such as loser pays, make it easier for individuals with good claims to sue businesses. It was criticized at the time. THF (talk) 23:41, 13 January 2009 (UTC)

Something about the URL "overlawyered.com" suggests that it might not be the best source of NPOV information. Can you cite a source for your claim that meets WP:V? Questionic 15:56, 14 January 2009 (UTC) —Preceding unsigned comment added by Questionic (talk • contribs)

Overlawyered is a tort reform website written by Walter Olson and Ted Frank. It satisfies WP:RS per WP:SPS for the proposition that tort reformers disagree with Fisher's characterization--even aside from the obvious fact that it's inaccurate. THF (talk) 16:00, 14 January 2009 (UTC)

I have added a quote from the blogpost you cite, but although overlawyered.com is a good source for the opinions of tort reform advocates it is certainly not, and doesn't pretend to be, WP:NPOV. Questionic 17:33, 14 January 2009 (UTC) —Preceding unsigned comment added by Questionic (talk • contribs)

By the way, I still object to the Fisher definition in the lead as inaccurate. Last time the solution was to quote Frank as counterbalance, which wasn't my intended consequence; I'd prefer a neutral definition in the lead. THF (talk) 18:04, 10 February 2009 (UTC)

I see. Any suggestions? I think the definition is important. Much of this article is muddled, and any clear definition would be a vast improvement. Cool Hand Luke 19:40, 10 February 2009 (UTC)

Could you take a look at what I tried to do and see if it meets the wishes of both sides? If somebody wants to tell me which tort reforms "make it easier for individuals with legitimate claims to sue businesses," that information could be added also. Questionic (talk) 13:35, 12 February 2009 (UTC)

Loser pays (see Gryphon (2009)) is the most obvious; Daubert prevents defendants from using junk science to defeat claims based on legitimate science; a number of class action reforms prevent plaintiffs' attorneys from colluding with defendants to rip off class members (Frank (2008)).

Separately, I prefer my own words to an imprecise paraphrase (and a neutral definition to a he-says/he-says counterpoint), but I'm not going to be the one to debate it. THF (talk) 13:42, 12 February 2009 (UTC)

Tort reform is a contentious issue; by using the Fisher quote (and a rebuttal) in the lede we offer the reader meaningful information that isn't conveyed by neutral definition. Furthermore, tort reform measures can't easily be summed up because they represent a shopping list intended to change some very different things about current legal practice. Just for example, the class action changes (and I agree with THF that class action is broken) belong in a separate logical basket from "loser pays" or "collateral source." I do agree that you made your points better than I did in my paraphrase. Questionic (talk) 14:23, 12 February 2009 (UTC)

I agree: tort reform is an umbrella term to describe any number of possible changes in the system, which is one reason it's so hard to define. There are reforms aimed at accuracy, there are reforms aimed at efficiency, there are reforms aimed solely at redistribution, and there are reforms that have a mixture of these goals. I don't think there's a single tort reform advocate who reflexively supports every proposal out there. Anyone asks me, I tell them that I oppose collateral source reforms. THF (talk) 18:57, 12 February 2009 (UTC)

Alright. I was trying to accommodate Wikidea who was strongly opposed to that in the lead block, but I agree that this is an improvement. Cool Hand Luke 16:39, 12 February 2009 (UTC)

I also was trying to satisfy Wikidea by making the slight change this time of not naming the Fisher criticism's author. I was the person who named the author in the first place, which I think upset Wikidea because he imagined said author was promoting himself by gratuitously inserting his name. And I agree that would have been annoying is someone had done that, but instead the author was an innocent and somewhat protesting bystander, as you can see by reading January remarks in this section of the talk page. Questionic (talk) 17:53, 12 February 2009 (UTC)

Medical malpractice and tort reform

The paragraph on gourley v obgyn needs to be rewritten. — Preceding unsigned comment added by 2600:1702:3C30:623F:BDFB:2DCF:A534:A825 (talk) 01:21, 2 November 2019 (UTC)

The high cost of medical malpractice insurance is a common talking point for "tort reform." But according to one recent paper [6]: "The recent focus by the American Medical Association and physicians about the dramatic increases in medical malpractice insurance premiums, and their suggestion of a cap on non-economic damages, deserves a closer look. According to Baicker and Chandra (2004), increases in premiums are not affected by past or present malpractice payments, but may increase due to other unrelated factors. Chandra, Nundy, and Seabury (2005) find that the rising cost of medical services may explain the bulk of the growth of “compensatory awards”. They also find that the greatest ten percent of the malpractice payments have grown at a smaller pace than the average payment for the years 1991 and 2003. This means that the “medical malpractice crisis” is not necessarily fueled by the growth in malpractice payments. Furthermore, malpractice pressure actually forces our hospitals to be technically more efficient. This implies that existence of the medical malpractice system is beneficial, and its strength should not be diluted by either putting caps on non-economic damages or by decreasing the statute of limitations." See also article in Slate "The Medical Malpractice Myth"[7]. Questionic 22:11, 14 January 2009 (UTC)

Feel free to insert. That's just one point of view, though, and the article should have a neutral point of view. Others have debunked the argument you mention. As Klick has noted, Baicker/Chandra (2004) made some basic errors. General consensus is that premium rates are affected by payout rates, and that payout rates are affected by damage caps. THF (talk) 22:15, 14 January 2009 (UTC)

However, it is not appropriate to remove any reference to medical malpractice at all. THF (talk) 23:35, 14 January 2009 (UTC)

I have been trying to find material to balance the POV that now dominates this article. If this article were strongly slanted against ATRA, I hope I would be looking for pro-ATRA material to add for balance.

It was not my goal to remove all reference to medical malpractice -- I was trying to restore balance by removing multiple paragraphs of pro-ATRA editorializing and OR. I have now replaced all those paragraphs, unbalanced POV and all, at the end of the section so that they can serve as a basis for more appropriate and balanced treatment of these topics. Questionic 02:23, 15 January 2009 (UTC) —Preceding unsigned comment added by Questionic (talk • contribs)

Organization of material

The claims made in 1990 by Professor Mackay (not Mackey) about product innovation do not belong in a section on product safety. Furthermore his "it must follow that..." argument is a clear case of the logical fallacy Post hoc ergo propter hoc. It would make equivalent sense to say "It must follow that the product liability doctrine has caused US manufacturers to live near Detroit, make gas-guzzling SUVs, and seek federal bailouts." Also, I don't see any verifiable source given for Mackay's quote or for John D Graham's either. Is there such a source that others could refer to? Please let's keep the debate strictly to Wikipedia policy and trying to find good, cited sources for all points of view advanced. I consider this article too heavy on ATRA POV as it stands, but I hope our common goal is to present both sides fairly. Questionic 01:36, 15 January 2009 (UTC) —Preceding unsigned comment added by Questionic (talk • contribs)

Number of lawyers

The external link for increased number of lawyers goes to a Newsbatch graph, which gives its source as this government document on medical malpractice. The data behind the bar graph appears in Table 1, giving the number of lawyers per 100,000 population in 1980 as 230 (with a standard deviation of 61) and in 2003 as 347 (with a standard deviation of 135). These are huge error bars, which appear nowhere on the Newsbatch graph. In fact, The fraction of lawyers in 1980 is well within a standard deviation of the fraction of lawyers in 2003. Elsewhere, maybe same report, someone notes that the demand for divorce and criminal lawyers accounts for most of the growth since 1980.

As for the rest of this section, which consists largely of allegations about predatory behavior by lawyers, where are the facts or numbers backing this up? If this stays in the article, we should for balance include a section alleging predatory behavior by insurance companies based on the known bad actions of a few. Questionic 11:52, 15 January 2009 (UTC) —Preceding unsigned comment added by Questionic (talk • contribs)

I removed the section. First of all, the "number of liability lawyers" claim is based on a source that didn't stand up to scrutiny. Second, the real issue for this article is the alleged predatory behavior of (some? all? most?) lawyers, which is implied to result from the (not demonstrated) increased competition -- yet not one single cited source meeting WP:V is given for this section other than the links to bad data based about number of lawyers. For balance, efforts by lawyers to promote their POV on tort law should be linked for fairness with efforts by tobacco companies, insurance companies, etc. to promote their POV on tort law. Questionic (talk) 16:07, 18 January 2009 (UTC)

Claimed inefficiency of legal system

This section needs balance and better sources.

It contains only two "references", both to graphics based on data provided by strong advocates of "tort reform". Aside from the suspect sourcing, neither graph gives good support to the sentence it was attached to.

"Even when non-economic "pain and suffering" awards are included, it has been estimated that only 46 percent of the total cost of the tort system ultimately ends up in claimants' pockets.[8]" Aside from its other flaws, the 1991 graph linked to here has nothing to do with that statement or with the number 46%.

"Tort reform advocates also contend that the system is not even-handed because the amount of per capita tort costs varies significantly from state to state.[9]" Surely it would be relevant to know how and when "per capita tort costs" were "measured" by the Insurance Information Institute, but the graph provides no such information.

To my mind, this section should be the heart of the case for tort reform rather than a few lame, sawed-off talking points. It should advance a clear, well-supported case that our current tort system does a worse job compensating victims than could be accomplished if the reforms they seek were in place. If lawyers (and insurance companies) offered their services without charging anything, that would obviously leave more money to compensate victims, but that is not what tort reformers propose.

The section should also present the opposing case: that "tort reform" would impose a net cost on the victims of injury and/or on society as a whole. I will be editing this section to try to make it look more like what I think it should be; I hope others with value to add will jump in and add it.

In my opinion, compensating victims is one important goal of tort law; another is punishing/deterring behavior that injures others. Questionic (talk) 18:23, 19 January 2009 (UTC)

OK, I took a whack at improving that section. I also looked at more references that might have useful info for some other sections: "What are the Costs of Litigation?" (1995) Than N. Luu and "Medical Liability: Balancing Access to Health Care, Patient Safety and Compensation" by Brenda Fitzgerald (February 11, 2005). Strangely, the Fitzgerald article cites the Luu article as her source for the following statement: "For those who sue and win, only 42 percent of the money awarded in medical tort cases ever reaches the patients or their families: 33 percent goes to lawyers and 25 percent goes to administrative costs." I cannot find anything remotely like this statement in the copy of the Luu article that's online. Mysterious, and of course those (1995?) numbers would be quite out-of-date by now anyway. Questionic (talk) 01:46, 20 January 2009 (UTC)

Medmal

Klick/Stratmann (2005) found non-economic damages caps improved infant mortality rates. THF (talk) 01:49, 20 January 2009 (UTC)

I found an abstract of Klick/Stratmann (2005) online[10] It says: "Many states have passed medical malpractice law reforms in an effort to retain and attract physicians. However, it is unclear what the net public health effect of such reforms is. While reforms are likely to help states retain doctors, they also diminish incentives to provide a high level of health care. We provide empirical evidence that some malpractice reforms have helped states retain doctors while others have not. However, retention of doctors comes at a cost. We show that some malpractice law reforms have lowered the level of care provided, as indicated by an increase in infant mortality. This suggests that some of the tort reforms lead to worsening health outcomes." This seems to support the 2008 study I cited, not to contradict it. Questionic (talk) 02:53, 20 January 2009 (UTC)

Found the whole paper online[11]; it says non-economic damage caps increase per capita doctors. Here is what it says about infant mortality:

For white infant mortality, we do not find a beneficial effect of the increased access to physicians occasioned by the passage of non-economic damage caps. We do find however that joint and several liability reform worsens the white infant mortality rate and the effect is statistically significant (p = 0.00). Joint and several liability reform is associated with an increase of 14 deaths per 100,000 live white births, a 3 percent relative effect. The effect loses statistical significance when we include state-specific trends.

We present the same specifications for black infant mortality rates. Among blacks, we do not find any statistically significant effect of joint and several liability reform. We do, however, find statistically significant effects of non-economic damage caps, collateral source reform, and restrictions on contingency fees, though only the collateral source effect is robust to all specifications.

In the specifications that do not include state-specific trends, we find that non-economic damage caps reduce black infant mortality by 55 deaths per 100,000 live black births, a relative effect of nearly 6 percent. When state-specific trends are included, the effect is no longer statistically significant.

Collateral source reform leads to statistically significant increases in black infant mortality in all specifications. The estimated effect suggests an increase of 44 deaths per 100,000 live black births, a relative effect of 5 percent when state-specific trends are not included and 73 additional deaths per 100,000 live black births (an 8 percent increase) when we control for state-specific trends.

Restrictions on contingency fees are associated with a decline of 69 deaths per 100,000 live black births, a 7 percent decrease, when state-specific trends are not included. This effect disappears when we control for state-specific trends.

The only effect that is consistent across specifications then is a negative effect of collateral source reform within the black community.

I'm not sure "non-economic damages caps improved infant mortality rates" is the best summary of the statements above. Questionic (talk) 03:08, 20 January 2009 (UTC)

A couple more cites:

• David J. Becker and Daniel P. Kessler, The Effects of the U.S. Malpractice System on the Cost and Quality of Care, in MEDICAL MALPRACTICE AND THE U.S. HEALTH CARE SYSTEM 84, 86 (William M. Sage & Rogan Kersh, eds., 2006) (because patients “reap substantial surpluses from medical care for which they cannot compensate providers,” doctors that weigh malpractice downside risk of treatment against only fraction of upside may inefficiently refrain from treatment of patients)
• Brennan et al., “Relation between Negligent Adverse Events and the Outcomes of Medical-Malpractice Litigation,” 335 NEJM 1963 (Dec. 26, 1996) (litigation system was just as likely to award damages in a case where no medical malpractice has taken place as one where medical malpractice has taken place; sued non-negligent doctors paid more on average to injured patients than the sued negligent doctors; majority of patients receiving compensation weren’t injured by negligence)
• U. S. GEN. ACCOUNTING OFFICE, MEDICAL MALPRACTICE INSURANCE: MULTIPLE FACTORS HAVE CONTRIBUTED TO INCREASED PREMIUM RATES 4 (2003), available at http://www.gao.gov/new.items/d03702.pdf (“We found that the increased losses appeared to be the greatest contributor to increased premium rates”); id. at 15 (“Inflation-adjusted incurred losses decreased by an average annual rate of 3.7 percent from 1988 to 1997 but increased by 18.7 percent from 1998 to 2001.”).
• David M. Studdert, et al., Claims, Errors, and Compensation Payments in Medical Malpractice Litigation, 354 NEW ENGLAND J. MED. 2024 (2006). (28% of patients who suffered no medical error received compensation (as did 16% of patients who sued without any medical injury), and that only 60% of cases filed involved medical error).

THF (talk) 03:40, 20 January 2009 (UTC)

Pasting up original research

See Wikipedia:Conflict of interest/Noticeboard#Tort reform and User:THF.

Talk pages are not the place for user disputes. See WP:TALK. I've linked there to avoid WP:MULTI. Cool Hand Luke 21:25, 9 February 2009 (UTC)

Reversion

Incidentally, Wikidea, the person who's complaining about lack of collaborative editing, just deleted several weeks of work and several thousand bytes of edits added by three editors who had nothing to do with me. THF (talk) 01:15, 10 February 2009 (UTC)

They were trying to remedy User:THF's ill conceived bias posting of a page about US tort reform. That material should be merged with the appropriate country specific page. User:THF should stick to something he is capable of writing dispassionately about. Wikidea 01:44, 10 February 2009 (UTC)

More factual errors

Wikidea's description of class actions and the problems relating to them is entirely fictional original research, and one-sided at that. Can someone please add the {totallydisputed} and {originalresearch} tags? THF (talk) 01:09, 10 February 2009 (UTC)

And if someone is interested in including points of view other than Wikidea's original research, material can be found at:

• Richard Epstein, "Class Actions: The Need for a Hard Second Look"
• Richard A. Epstein, Class Actions: Aggregation, Amplification, and Distortion, 2003 U. CHI. LEGAL F. 475
• Michael Greve, "Harm-Less Lawsuits? What's Wrong with Consumer Class Actions"
• Jim Copland, "Class Actions"
• George L. Priest, “Class Warfare,” Wall Street Journal, May 5, 2003.
• Ted Frank, "The Class Action Fairness Act Two Years Later"

- THF (talk) 01:15, 10 February 2009 (UTC)

Lastly, I'd just like to note that we are still unaware as to what exactly Ted finds objectionable about the class action paragraph. Yes, it does not appear to be brilliant, but frankly, it's better than nothing, and that is what we're getting about what to do from Ted. Wikidea 02:00, 10 February 2009 (UTC)

Class action section

What I find objectionable about this section is that it is completely factually inaccurate unreferenced original research, and violates NPOV. This is why I request {totallydisputed} and {originalresearch} tags. Since Wikidea does not acknowledge that he has completely misunderstood class action law, we need an {expert} tag, too.

1. There are also concerns about the use of class actions. WP:WEASEL
2. This is where a group of claimants band together to bring similar kinds of claims all at once. Factually incorrect. See Federal Rule of Civil Procedure 23(a).
3. what will usually happen is that one case will be funded as a "test case", Factually incorrect. See Federal Rule of Civil Procedure 23(c)(3). Wikidea appears to have confused class actions with mass-tort multi-district litigation.
4. if judgment falls in the claimants' favour the tortfeasor will settle remaining claims. Factually incorrect. See Federal Rule of Civil Procedure 23(c)(3).
5. In the U.S., class actions have been used (and by some views abused) in order to overcome the differences in tort laws applicable in different states. Incomplete, passive voice, and WP:WEASEL.
6. So if one claimant lives in State X, where tort laws are unfavourable to their claim, but another claimant lives in State Y, where tort laws are favourable, they may bring a class action together in State Y. "May" is ambiguous and misleading.
7. Strictly speaking, State Y must not adjudicate the claim unless it is found that the applicable law is similar or identical in both states, but as a practical matter this rule is often disregarded in favor of efficient resolution of claims. Incomplete; no mention of due process issue. See Phillips Petroleum Co. v. Shutts, 472 U.S. 797 (1985).
8. [footnote to Class Action Fairness Act] Non sequitur. CAFA has nothing to do with the sentence where it is footnoted.
9. Another measure particular to the U.S. is the introduction of "proportionate liability", in place of joint and several liability. Non sequitur. This issue is orthogonal to the issue of class actions.
10. No mention of the extortionate effect of settlement pressure of class actions. (See In re Bridgestone/Firestone, Inc., 288 F.3d 1012, 1015–16 (7th Cir. 2003); West v. Prudential Securities, Inc., 282 F.3d 935, 937 (7th Cir. 2002); Szabo v. Bridgeport Machines, Inc., 249 F.3d 672, 675 (7th Cir. 2001); In re Rhone-Poulenc Rorer Inc., 51 F.3d 1293, 1299–1300 (7th Cir. 1995); Henry J. Friendly, Federal Jurisdiction: A General View 120 (1973); see also Milton Handler, The Shift from Substantive to Procedural Innovations in Antitrust Suits--the Twenty-Third Annual Antitrust Review, 71 COLUM. L. REV. 1, 9 (1971); Epstein, supra; Priest, supra; Frank, supra.)
11. No explicit mention of forum shopping or magnet jurisdiction problems of class actions. (Frank, supra; Linda S. Mullenix, Abandoning the Federal Class Action Ship: Is There Smoother Sailing for Class Actions in Gulf Waters?, 74 TUL. L. REV. 1709, 1715 (2000); John H. Beisner & Jessica Davidson Miller, Class Action Magnet Courts: The Allure Intensifies, MANHATTAN INST. CIV. JUST. REP. NO. 5 (July 2002), available at http://www.manhattan-institute.org/pdf/cjr_05.pdf.)
12. No mention of abuse of consumer fraud laws in class actions. (Greve, supra.)
13. No mention of problems of settlement abuse in class actions.
14. No mention of problems of class certification of individualized claims in class actions. (Epstein, supra.)
15. No substantive discussion of reforms in Class Action Fairness Act, the one major federal tort reform passed in the last decade. (Frank, supra.)
16. No mention of problems of kickbacks to named plaintiffs in class actions.
17. No mention of problems of cy pres settlements in class actions. Bronstad NLJ article
18. No mention of the principal-agent problem and due process rights of unrepresented class members.

That's just off the top of my head; I might think of more if I gave it thought. In short, this section is Wikidea's personal opinions about class actions, and has nothing to do with tort reform or the tort reform debate over class actions.

(I'm ignoring the repeated WP:NPA violation. The idea that I have a conflict of interest with the Wall Street Journal because I've written four or five op-eds for them is pretty humorous; they're the only major newspaper that writes about tort reform, so of course I'm going to have written for them and cite them.) THF (talk) 02:44, 10 February 2009 (UTC)

The things THF says are "factually incorrect" are not. Other users may start with the first assertion by checking out the class action page (quick before THF tries to put up neutrality tags there too!). For the 'non sequitur's I really have no idea what he is talking about. The question is whether you trust a lobbyist who wants to trash Wikipedia articles like this one, or whether you trust people who are interested in the improvement of knowledge on a free and open encyclopedia. Wikidea 02:22, 10 February 2009 (UTC)

See how collaboratively Wikidea edits? I make 18 suggestions, and he responds with a personal attack. THF (talk) 02:44, 10 February 2009 (UTC)

Down boys, both of you! I agree with #1, 2, 4, 5, 8, 9. The point objected to in #3 and #6 are valid, even though poorly expressed. The point referred to in #7 is just too obtuse in the article, it needs to be better explained. Comment #10 misses the mark I think, although that might be the point made as #13, #16, and #17. The critique about the "extortionate effect" (obviously we need more NPOV language) usually comes from the big company defendants and their paid spokespeople. There is also criticism both from them and consumer groups that a small industry has developed, with the courts, lawyers, and clients on both sides sapping money out of the system in a way that does not really benefit anyone but themselves. Five million checks for $5, free cosmetics in your local department store (if you wait in a 2-hour line), or 10% off airline coupons, plus $200 million to the law firm, is not the best economic incentive to convince companies to avoid price fixing, and not very helpful as redress for consumers. #11 is a good point, although I think we should just link to an article on what forum shopping is rather than trying to explain the concept here... also, beyond just saying that it exists, it would be good to hear whether tort reformers have any proposals for what to do about it, and what has come of them. Similar thought on 12, 14, 15, and 18 - those are important subjects we should treat here, keeping in mind that this article has to be NPOV and is about tort reform (meaning we should document what people are saying and doing about the issue), not about how the tort system works and what is wrong with it.Wikidemon (talk) 21:45, 10 February 2009 (UTC)

You're ambiguous -- you agree with my #1, or you agree with the problematic quote in #1? (If nothing else, "the use of" is surplusage in that.) I need to know whether to provide additional cites demonstrating I'm correct about 1,2,4,5,8,9 or 3,6. As my cites show, the critique about the "extortionate effect" comes from judges and law professors, too; no reason to tone that down, because those exact words are used in describing the problem. (We should, of course, include rebuttal from the trial lawyer lobby.) Your point about coupons and small checks is covered in #13, but not in the current version of this article. #11 is a very big issue, and the motivation for the Class Action Fairness Act. I agree re 12, 14, 15, and 18, and wasn't proposing anything else. THF (talk) 21:55, 10 February 2009 (UTC)

I'm agreeing with you regarding #1, 2, 4, 5, 8, and 9; agreeing on 11, 12, 14, 15, and 18 with the caution / proviso you acknowledge; agreeing on #10 but saying it is only half the story and that the other half is an issue covered in part in 13, 16, and 17; and disagreeing in part on 3 and 6 (but agree that the material in the article is inadequate to the point of being wrong). So for the most part I agree with the substance and think editing along this line could be a great improvement to the section. A judge or advocate opining that a practice is "extortionate" can be included, but as with any opinion it ought to be cited inline, put in context, and covered with WP:WEIGHT due to its importance vis-a-vis any other opinions on the subject, not just cherry-picked. If it's just inflammatory language used on occasion to characterize something fully, and more commonly, described with neutral language we have no reason to use loaded words. Also, I hope we're not going for a "Hardworking business vs. the trial lawyers" tone - I was hoping for something closer to "Greedy corporate tycoons vs. the abused public". Wikidemon (talk) 22:31, 10 February 2009 (UTC)

5, 6, 7, 12

Here's a short piece discussing some of the issues in 5, 6, 7, and 12. Apologies in advance for the identity of the author, but one can follow the footnotes to other secondary sources that discuss the same thing for less objectionable authors. THF (talk) 23:06, 10 February 2009 (UTC)

Compensation culture section

Dubious statement:

• "Settlements are made "in the shadow of the law", so the amounts paid will usually approach or approximate what would be an expected award in court, if a credible threat from a claimant's solicitor is seen to exist." — A rational actor would settle for less than expected costs, even if it's all litigation costs with an expected victory of zero. Cool Hand Luke 03:13, 10 February 2009 (UTC)

That's a big difference between the American system and the rest of the world, which has loser pays and less variance in damages awards, and settlements can be expected to approximate likelihood of success. There's very likely a cite out there supporting Wikidea's original research, it just won't be accurate with respect to U.S. litigants. Still, that sentence has very little to do with the objections to the compensation culture; Wikidea's POV distaste for tort reform has led him to mischaracterize the nature of the compensation culture objections. It's a big reason why we have a WP:NOR rule, and a big example why the OWN problems in this article are so especially bad, and why I've said the whole thing needs to be scrapped and started from scratch. THF (talk) 03:37, 10 February 2009 (UTC)

This sentence is accurate then: approach or approximate means "not quite" expected costs. A good article from the law and economics school on this is Coase's The Problem of Social Cost - the eventual outcome will depend, as he points out, on the negotiating skill of the parties.

Again, THF has a clear conflict of interest, and his comments should best be disregarded. He is not interested in improving, only trashing this article. Wikidea 10:31, 10 February 2009 (UTC)

That's a fundamental misunderstanding of Coase, which doesn't surprise me given other fundamental misunderstandings of law and economics your edits have shown. (The words "negotiating skill" never appear in The Problem of Social Cost.)

As for improvements to the article, I suggested eighteen to improve just one paragraph, and your only response is to make multiple personal attacks on me. THF (talk) 10:41, 10 February 2009 (UTC)

Doing a word search is not reading the article. Others can take it from me that this is precisely what Coase says. I will be happy to explain to anyone else who is interested (not you either Luke). THF is not capable of engaging in rational debate on these issues. He has a clear conflict of interest, because he is a professional lobbyist, and appears to be well trained in this Karl Rove style of engagement. Wikidea 13:33, 10 February 2009 (UTC)

"THF is not capable of engaging in rational debate on these issues." says the guy whose sole means of countering claims is to personally attack people. Maybe spend less time attacking people's character and spend more time countering their actual arguments, or are you so lacking in evidence to support your claims that you must rely on attacking other people? The more I read law articles the more I see your handy work and it is so terribly disappointing that such a valuable public resource is being shat all over by one individual with a god complex. —Preceding unsigned comment added by 67.161.159.216 (talk) 06:19, 19 February 2010 (UTC)

No, Coase would probably say what I said in my comment. This kicker here (and what makes it theoretically plausible) is that this is based on a loser pays system. There should probably be a good secondary source that addresses exactly this point for Britain, but applying Coase here is original research. Cool Hand Luke 15:19, 10 February 2009 (UTC)

The problem that the compensation culture hasn't been fairly characterized still remains, even if we fix this particular tidbit of original research. NB that Wikidea made a fourth revert to delete the tags Cool Hand Luke added. THF (talk) 15:24, 10 February 2009 (UTC)

As someone with no stake in the argument, I do not care who is being uncivil to whom. Back to the point, I don't see what settlement values have to do with compensation culture. As best as I can understand the "compensation culture" critique (in America it may be related to "victim mentality" or "cult of the victim" or something like that) is a two pronged complaint. First, in a moral / ethical / personal responsibility sense people are looking to others to pay them money whenever they are wronged, as if they have an entitlement to be babied instead of owning up to their personal failings and keeping a stiff upper lip about life's good and bad luck, a sort of nanny government thing. Second, in an economic sense, the availability of large awards encourages socially inefficient behavior, where people's productive efforts are directed to milking the system rather than producing goods or services that add to the economy. The only way in which settlement methodologies and valuations fits in is that it generates a large reward. But frankly, that's all we should have to say... "because of the availability of large damage awards (and consequently, high settlements), people [do x]". It's not relevant to compensation culture, and possibly not to the article at all why the awards are so high.Wikidemon (talk) 21:15, 10 February 2009 (UTC)

Damages cites

• This article is not primarily about the UK; it covers the US, Australia and NZ and the UK too. There has been no mention here of why that should be so, and turning this page into a US tort reform page is not appropriate.
• The "neutrality" tag and "original research" tag was put up by THF, who works for a right wing lobbyist; Cool Hand Luke wishes to keep them in because he appears to be following up old grudges, as can be seen from the conflict of interest entry for THF above. He has, ironically, deleted a good reference to US law, and does not seem to actually be concerned about approving the article.
• So, a third opinion of someone who is interested in approving the article, preferably with some knowledge of debate about the tort system outside the US as well as in, would be useful.

Wikidea 10:28, 10 February 2009 (UTC)

What? These are not good cases on the point. I'm going to find a good secondary source for examples of large damages, but those sentences are flatly wrong as written. I wish you could also assume some good faith. Cool Hand Luke 15:15, 10 February 2009 (UTC)

I've written about the subject here and here. THF (talk) 15:22, 10 February 2009 (UTC)

Cited an interested study that did a survey of such awards. Cited the case mentioned in their introduction, which is apparently the highest non-class action punitive award they found. Cool Hand Luke 16:30, 10 February 2009 (UTC)

NPOV Suggestion: For example, in 1999, a Los Angeles County jury awarded $ 4.8 billion in punitive damages against General Motors to a group of six burn victims whose 1979 Chevrolet Malibu was rear-ended _by a drunk driver_. [12] THF (talk) 17:27, 10 February 2009 (UTC)

That's good. I didn't find that story before; much more detail about the accident itself. Cool Hand Luke 17:38, 10 February 2009 (UTC)

Lord, I have a million of 'em. It's a burden. THF (talk) 18:02, 10 February 2009 (UTC)

A litany of large awards is itself POV - you know, WP:COAT. A frequent method of the so-called tort reformers is to selectively cite, take out of context, and often misrepresent specific claimed excesses. Liebeck v. McDonald's Restaurants is probably the most infamous example of that. We could list counterexamples where the victims had no recourse or were somehow denied justice, or where the claimed outrage was not in fact a failure of the tort system, but Wikipedia doesn't serve as a place to re-argue the things that are being argued off Wiki. Moreover, "for example" is in general not an encyclopedic thing because that is an exposition rather than a presentation of information, it is Wikipedia talking instead of Wikipedia presenting what others say. Examples are best cited to secondary sources, not used in a primary source (e.g. "Tort reform advocates cite the example of a General Motors case" [and then we present the full context and how the example was used], not "For example, a lawsuit against General Motors..."]). Wikidemon (talk) 21:08, 10 February 2009 (UTC)

I agree. I didn't choose this example, the authors of a secondary study did. I have no idea why these cases were cited, particularly because they're unrelated. Cool Hand Luke 21:23, 10 February 2009 (UTC)

For the record, I wasn't proposing citing a million cases. I just have the remarkably useless knowledge of the facts of many major verdicts in the last twenty years, so immediately knew the search terms to quickly find articles about the case CHL dug up. It hasn't gotten me very far in life, but saved me a couple of minutes on Wikipedia today. I'll refrain from the invitation to CHAT about the miscarriage of justice in the coffee case. THF (talk) 21:46, 10 February 2009 (UTC)

We can chat about article editing then? The point is that there are any number of cases that could be mentioned, but it is more encyclopedic to report on which cases the tort reformers have in mind, for WP:WEIGHT reasons preferably those that we can source to significant mentions in high level neutral third party reliable sources on the subject of tort reform (as opposed to citing the cases themselves or citing directly the arguments of the tort reformers) as being frequently used by the tort reform movement as cases in point.Wikidemon (talk) 22:18, 10 February 2009 (UTC)

To my knowledge, noone other than Wikidea was suggesting doing anything else. (Not to bad mouth him, but I have no idea how he was choosing the cases he was choosing to include.) There are plenty of secondary sources out there to give this article full coverage. THF (talk) 22:26, 10 February 2009 (UTC)

I cited what I believe to be the best example of a large award. This case seems to be mentioned often in secondary sources; there are dozens of law review mentions of this award in lexisnexis, and it also seems to be common in tort reform advocacy. I could find more if you want, but I only intended to replace the article's flatly incorrect examples (for which Wikidea accused me of various bad things above). I agree that we should cite secondary cases—there are a number of inexplicable primary citations in this article. You'll notice that I've thrown several of them into the footnotes. Cool Hand Luke 00:53, 11 February 2009 (UTC)

Then of course we get into the realm of intent. Punitive damages are designed to punish repeat offenders and those who flagrantly violate laws and standards. Punitive damages are supposed to hurt. Citing punitive damages as 'excesses' without describing the intent, without indicating what the actual impact on the punished entity was, and without taking into account the fact that no system is ever perfect, ignores the fact that only filthy rich corporations ever pay massive sums, only rarely compared to the damages they inflict while racking up excessive profits, and are so huge they almost never suffer from it, leaving the impression that it is all about the greed of the plaintiffs which is of course rubbish. Lobbyists and think tank experts will always try to confuse the issue because that is what they get paid to do. They always have the best staff to cherry-pick the data. Any citation of excessive damages needs to explicitly prove that the damages were excessive rather than just throwing large numbers around, and also indicate specifically why the excessive damages were awarded so that the root cause can be addressed, rather than simply demanding caps that take the teeth out of the civil tort system. We do not inhabit a plutocracy. I would love to edit the article but unfortunately I was damaged, and due to damage caps I could not find an attorney willing to take my case, so all I can do is ask that my reality be truthfully represented because it is increasingly common. —Preceding unsigned comment added by 75.79.69.67 (talk) 02:26, 4 January 2010 (UTC)

intro sentence

why is "Tort reform refers to proposed changes in the civil justice system that would reduce tort litigation or damages." preferrable to something like "Tort reform refers to proposed changes in the civil justice system that would mainly serve to reduce the ability of people to sue for damages caused by companies".Cinnamon colbert (talk) 13:32, 5 June 2009 (UTC)

I would argue that the phrase "tort reform" is, in and of itself, not NPOV, as, in common english usage, the word "reform" implies improving or fixing something broken; that is "tort reform" is a loaded phrase. I would argue that the title and intro should be something like (this isn't right, but it is going in the right direction): title: Proposed changes to the US system of civil litigation. In the US, private parties, such as individuals or companies, who has been harmed or injured by the action of another private party, can sue to recover money as compensation for the damage. A loose coalition, mainly identified with the Republican party and large business, maintains that such suits are often unjustified, and that the monetary awards are so large, and the fear of such awards is so great, that businesss and other institutions are harmed. This coalition has proposed cahnges to the civil justice system termed "tort reform'; as implied by the word "reform" the coalition feels that the current system is broken and need to be fixed. —Preceding unsigned comment added by Cinnamon colbert (talk • contribs) 14:35, 17 June 2009 (UTC)

Tort Reform is overwhelmingly the most popular term used; changing the name would simple make the article harder to find. You'll note that the article Pro-Life stands, despite the name having been chosen to specifically insult its opposition. --Kingoomieiii ♣ Talk 15:14, 17 June 2009 (UTC)

should an encyclopedia have misleading info to satisfy popular demand? Surely accuracy trumps popularity, and one can take care of the harder to find bit with a redirct 65.220.64.105 (talk) 19:38, 17 June 2009 (UTC)

Accuracy trumps popularity, but not verifiability. The official term is Tort Reform, and it would be a violation of neutral point of view to 'PC'-ify it to suit an interested minority. We're not going to go around adding the word "alleged" to articles like Aspartame controversy either. And your use of the term "misleading" is itself misleading, as it seems to indicate that tort laws are definitively in no need of reform. --Kingoomieiii ♣ Talk 20:15, 17 June 2009 (UTC)

Legislative Attempts in the US for Tort Reform

The artcle mentions that Tort Reform was a centerpiece of George W. Bush's 2004 run for office, but does not give any account of the Tort Reform that passed or did not pass under his administration.

It would be nice to have a list of any major attempts in the US for Tort Reform legislation on the national level. —Preceding unsigned comment added by 216.24.167.52 (talk) 17:53, 25 July 2009 (UTC)

"Themes of Reform" section

First, I think a more NPOV title would be "Themes of the "tort reform" debate." Second, I am puzzled to see the obscure and rarely discussed reform "special malpractice courts" at the head of this list of general themes. I will try to re-organize these in some order that reflects their relative importance. Questionic (talk) 18:15, 22 October 2009 (UTC)

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Criticism section contains biased counterpoints

Criticism section says that “a single lawsuit can bankrupt a small business” and thus tort reform proponents argue it’s good for small businesses.

there’s few examples of a lawsuit taking out a small business. This is largely because the big verdicts/settlements incorporate “punitive damages” of which the jury is instructed to consider the defendant’s “ability to pay” as one of the factors in determining the amount. Thus, the jury when faced with a small business defendant would be fully appraised of their financials and would be able to duly consider their limited financial resources in devising an award that effectively deters future bad conduct. The large awards against major corporations are a result of the same thing— the plaintiffs are arguing that the award must be massive to deter future bad conduct and that means a large punitive award.

the criticism section shouldn’t contain a counter argument when there’s already a section for that, and if it does it needs a citation 2600:1006:B32E:9153:E4C3:6D29:3603:EA82 (talk) 00:50, 24 August 2024 (UTC)