Torts - Cases, Principles, and Institutions Fifth Edition, 2016a

Witt & Tani, TCPI 4. Negligence Standard
priority in closed-door Affordable Care Act negotiations with the White House. Instead, the
AMA focused on increasing physicians’ Medicare payments, purportedly to the exclusion of
virtually all else. See Ezekiel Emanuel, Inside the Making of Obamacare, WALL ST. J., Mar. 8,
2014, at C3 (noting that the final version of the Affordable Care Act merely “funded states to test
their own malpractice reforms”). Does this tell us anything about the real politics of medical
malpractice?
6. Is there an effect of medical malpractice liability on health outcomes? One goal of
medical malpractice liability is to improve health outcomes by creating good incentives for
medical professionals. Yet many observers doubt that liability has any consistent relationship to
health outcomes. One empirical study used Medicare claims data to examine the impact of states’
malpractice regimes on patients’ health outcomes post-surgery. The researchers found no
consistent relationship between a state’s malpractice laws and patients’ risk of death or
complications arising from surgery. Christina A. Minami et al., Association Between State
Medical Malpractice Environment and Postoperative Outcomes in the United States, 224 J. AM.
COLLEGE SURGEONS 310 (2017); see also Michael Frakes & Anupam B. Jena, Does Medical
Malpractice Law Improve Health Care Quality?, 143 J. PUBLIC ECON. 142 (2016) (suggesting that
damage caps play “at most a modest role” in improving patient outcomes). Nor do state damage
caps seem to affect rates of births by cesarean section, though the evidence is mixed. Sabrina
Safrin, The C-Section Epidemic: What’s Tort Reform Got to Do with It?, 2018 U. ILL. L. REV. 747
(2018); see also Janet Currie & W. Bentley MacLeod, First Do No Harm? Tort Reform and Birth
Outcomes, 123 Q. J. ECON. 795 (2008). On the other hand, studies of medical malpractice have
found that in at least some areas of medical care, there are good reasons to think that tort liability
has played a substantial and constructive role in improving outcomes. Anesthesiology, which
proved susceptible to monitoring and automation, and which was far more dangerous than it is
now, is the lead example. See TOM BAKER, THE MEDICAL MALPRACTICE MYTH 108-10 (2008);
see also Robert A. Caplan, Karen L. Posner, Richard J. Ward & Frederick W. Cheney, Adverse
Respiratory Events in Anesthesia: A Closed Claims Analysis, 72 ANESTHESIOLOGY 828 (1990)
(using malpractice claims to identify the leading cause of injury in anesthetic practice—adverse
respiratory events—and observing that 72 percent of these injuries could be prevented with better
monitoring and equipment); Steven E. Pegalis & B. Sonny Bal, Closed Medical Negligence
Claims Can Drive Patient Safety and Reduce Litigation, 470 CLINICAL ORTHOPAEDICS &
RELATED RES. 1398, 1401 (2012), https://perma.cc/92LS-46FJ (summarizing anesthesiology
findings, as well as the findings of two studies from the field of obstetrics).
E. Statutes and Regulations
So far we have dealt mostly with court-made, common law materials. But a pervasive
question in the modern state is how to deal with legislation and regulatory directives. Writing
more than thirty years ago, Guido Calabresi put it this way:
The last fifty to eighty years have seen a fundamental change in American law. In
this time we have gone from a legal system dominated by the common law, divined
by courts, to one in which statutes, enacted by legislatures, have become the primary
source of law. The consequences of this “orgy of statute making,” in Grant
Gilmore’s felicitous phrase, are just beginning to be recognized. The change itself
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