The Situationist

Posts Tagged ‘litigation’

The Deeply Captured Situation of “Defensive Medicine”

Posted by The Situationist Staff on September 28, 2012

Sidney Shapiro, Thomas Owen McGarity, Nicholas Vidargas, and James Goodwin, have recently published their White Paper, titled “The Truth About Torts: Defensive Medicine and the Unsupported Case for Medical Malpractice ‘Reform’” on SSRN.  Here’s the abstract.

In the debate about health care reform, “defensive medicine” has become a convenient culprit for rising costs and especially rising physician malpractice premiums. Vaguely defined, the phrase, “defensive medicine,” is used to suggest that physicians make medical decisions to avoid potential litigation, instead of with their patients’ health and safety in mind. On the strength of this assertion alone, some policymakers argue for restricting Americans’ right to bring suit to recover damages for medical malpractice. This report demonstrates, however, that the proponents of medical malpractice “reform” lack persuasive evidence that tort litigation against physicians encourages them to make medical decisions that they would not have made otherwise.

Powerful business interests have compelling reasons to perpetuate the “defensive medicine” myth. Because the national health care debate has been framed around costs – not patient health and safety or access to care – the “defensive medicine” message has been successfully deployed to restrict Americans’ access to the courts in many states. Meanwhile, “defensive medicine” also serves as a politically expedient straw man, allowing policymakers and the insurance industry to ignore or obscure the real drivers of rising medical costs, including the high costs of prescription drugs; the high demand for, and increasing use of, state-of-the-art technology; the growing incidence of chronic diseases; and an aging population that lives longer and consumes more medical care.

This report first establishes that an intact and robust civil justice system is necessary to the health of society and exposes how rarely doctors are actually being sued. Next, it examines why doctors order tests and procedures. It then surveys available empirical evidence showing that a supposed “defensive medicine” mindset has little impact on medical decisions or on medical practice costs. The report also exposes extraordinary shortcomings in the methodology and academic rigor of the evidence most frequently cited by civil justice opponents.

The evidence reveals that “defensive medicine” is largely a myth, proffered by interests intent on limiting citizen access to the courts for deserving cases, leaving severely injured patients with no other recourse for obtaining the corrective justice they deserve. These changes would limit the deterrent effect of civil litigation and diminish the regulatory backstop that the civil justice system provides to the professional licensing system, leading to more medical errors. Restricting lawsuits might save doctors a negligible amount on malpractice premiums but the vast majority of any savings will most certainly line the pockets of the insurance companies demanding these restrictions. On the other hand, buying into this myth has very real and dangerous consequences. Allowing civil justice opponents to pretend that constraining the civil justice system equates to meaningful health care reform distracts us from doing the things that must be done to fix the system, including avoiding the 98,000 deaths caused by preventable medical errors every year and reducing the unacceptable number of uninsured Americans.

Download report for free here.

For a related recent briefing book assembled by the Center for Justice & Democracy click here

Related Situationist posts:

Posted in Abstracts, Deep Capture, Law, Politics | Tagged: , , , , , | Leave a Comment »

The Regulatory Situation of Smoking

Posted by The Situationist Staff on June 1, 2011

From The Independent:

More than half a century after scientists uncovered the link between smoking and cancer – triggering a war between health campaigners and the cigarette industry – big tobacco is thriving.

Despite the known catastrophic effects on health of smoking, profits from tobacco continue to soar and sales of cigarettes have increased: they have risen from 5,000 billion sticks a year in the 1990s to 5,900 billion a year in 2009. They now kill more people annually than alcohol, Aids, car accidents, illegal drugs, murders and suicides combined.

* * *

The West now consumes fewer and fewer of the world’s cigarettes: richer countries have changed – from smoking 38 per cent of the world total in 1990, they cut down to 24 per cent in 2009. Meanwhile, the developing world’s share in global cigarette sales has increased sharply, rising to 76 per cent in 2009.

An investigation by The Independent on Sunday reveals that tobacco firms have taken advantage of lax marketing rules in developing countries by aggressively promoting cigarettes to new, young consumers, while using lawyers, lobby groups and carefully selected statistics to bully governments that attempt to quash the industry in the West.

In 2010, the big four tobacco companies – Philip Morris International, British American Tobacco, Japan Tobacco and Imperial Tobacco – made more than £27bn profit, up from £26bn in 2009.

The price of their profits will be measured in human lives. In the 20th century, some 100 million people were killed by tobacco use. If current trends continue, tobacco will kill a billion people in the 21st century.

* * *

Anna Gilmore, professor of public health at the University of Bath, said: “What most people don’t realise is that, although sales are falling in the West, industry profits are increasing. These companies remain some of the most profitable in the world. This is thanks in part to their endless inventive ways of undermining and circumventing regulation. They’re trying to reinvent their image to ingratiate themselves with governments, but behind the scenes it’s business as usual.”

* * *

In Indonesia alone there are 21 million child smokers. There is little to stop companies promoting cigarettes to young people. In countries such as Nigeria, Ukraine and Brazil, tobacco companies have sponsored club nights or parties aimed at attracting new young users. In Russia, attempts to entice women smokers have included packaging made to look like jewel-encrusted perfume bottles and even selling cigarettes branded by the fashion house Yves Saint Laurent.

Dr Armando Peruga, programme manager for the WHO’s tobacco free initiative, said: “We need to do more. We need to stop the tobacco industry promoting themselves as normal corporate citizens when they are killing people every day. We are lagging behind in establishing comprehensive bans on advertising, marketing, promotion and sponsorship.”

* * *

Laurent Huber, director of the Framework Convention Alliance on tobacco control, said: “In countries like Uruguay, the tobacco industry uses its vast wealth to tie up public health measures in court battles. Win or lose, this has a chilling effect on other governments.”

These tricks are by no means confined to the less-regulated emerging countries. In Australia, which will become the first country to introduce plain packaging for cigarettes by law, the industry has been accused of scaremongering against the measures by threatening to flood the market with cheap fags.

In Britain, the industry is also prone to taking any measures necessary to keep regulation at bay. This autumn a group of tobacco companies is taking the Government to court over its proposals to ban cigarette displays in all shops.

More often in the UK, though, Big Tobacco’s attempts to alter public opinion are more subtle. A study from Action on Smoking and Health (ASH), out this week, scrutinises the credibility of economic arguments used by the industry to fight back against legislation. For example, when Christopher Ogden, chief executive of the Tobacco Manufacturers Association, said in 2010 that the smoking ban had severely threatened the pub and bingo industry because of lost jobs and livelihoods, the reality was a little different. Data from the Office for National Statistics shows a net increase in the number of people visiting pubs since the smoking ban. When England went smoke-free in 2007, the number of premises licensed for alcohol increased by 5 per cent, and it has continued to grow every year since.

Deborah Arnott, chief executive of ASH, said: “In line with our international treaty obligations, the UK government has not only banned advertising and put health warnings on packs, but also committed to protect public health policies from the commercial and vested interests of the tobacco industry. To get round this, the industry uses front groups to covertly lobby politicians, arguing that smoke-free legislation has destroyed the pub trade, and that putting tobacco out of sight in shops will both be ineffective and put corner shops out of business.

More.

Related Situationist posts.

Posted in Choice Myth, Deep Capture, Education, Law, Politics | Tagged: , , , | Leave a Comment »

The Situation of Civil Settlements – Abstract

Posted by The Situationist Staff on June 26, 2008

Blurry Clockface - by Neil101, FlickrJohn Bronsteen, Christopher Buccafusco, and Jonathan Masur recently posted their fascinating article, “Hedonic Adaptation and the Settlement of Civil Lawsuits” (forthcoming in the Columbia Law Review) on SSRN. Here’s the abstract.

* * *

This paper examines the burgeoning psychological literature on happiness and hedonic adaptation (a person’s capacity to preserve or recapture her level of happiness by adjusting to changed circumstances), bringing this literature to bear on a previously overlooked aspect of the civil litigation process: the probability of pre-trial settlement. The glacial pace of civil litigation is commonly thought of as a regrettable source of costs to the relevant parties. Even relatively straightforward personal injury lawsuits can last for as long as two years, delaying the arrival of necessary redress to the tort victim and forcing the litigants to expend ever greater quantities of resources. Yet these procedural delays are likely to have salutary effects on the litigation system as well. When an individual first suffers a serious injury, she will likely predict that the injury will greatly diminish her future happiness. However, during the time that it takes her case to reach trial the aggrieved plaintiff is likely to adapt hedonically to her injury – even if that injury is permanent – and within two years will report levels of happiness very close to her pre-injury state. Consequently, the amount of money that the plaintiff believes will fairly compensate her for her injury – will make her whole, in the typical parlance of tort damages – will decrease appreciably. The sum that the plaintiff is willing to accept in settlement will decline accordingly, and the chances of settlement increase – perhaps dramatically. The high costs of prolonged civil litigation are thus likely to be offset substantially by the resources saved as adaptive litigants succeed in settling before trial.

Posted in Uncategorized | Tagged: , , , , , , , , , , , , | 1 Comment »

 
Follow

Get every new post delivered to your Inbox.

Join 853 other followers

%d bloggers like this: