In this article, we will discuss medical malpractice or negligence, and breaching the Standard of Care (SOP). We will also make dollars and cents out of Letters of Protection, and deconstruct value through data. Moreover, this article discusses adopting reasonable value as a tool for measuring damages in medical malpractice cases.
Medical Malpractice, Negligence, And Breaching The Standard Of Care
Currently, in the United States, actions that result in harm to another individual are litigated under the tort system. These actions are called medical malpractice cases. Tort law is one of the fundamental pillars of civil law, and it aims to regulate unwanted human behavior.[i] Moreover, medical negligence and medical malpractice, by extension, are also governed under tort law.
The statutory requirements to file causes of action for tortious behavior (i.e., medical negligence) vary from state to state.
However, all tort laws share the same basic goal:
“To compensate victims of negligent behavior based on the breach of a legal duty that caused damages.”[ii]
Similarly, no less is true in medical negligence cases where physician or provider-defendants are subject to a negligence rule of liability.
In tort law, providers … connected to a preventable harm can be named in a suit as defendants based on their respective roles and duties. Accordingly, employers may be vicariously liable for employees’ actions, corporate entities can be held liable for their affiliated facilities, and providers can be jointly and severally liable for actions for which they each held responsibility ….[iii]
What happens if a provider-defendant is found liable for medical malpractice?
Therefore, if a provider-defendant is found liable, tort law penalizes him or her and compensates the plaintiff (to uphold “private rights of action”). [iv] However, long before the judge and jury conclude liability, the provider-defendant can present evidence of him or her doing what a reasonable and prudent actor would have done or not done under like circumstance to avoid liability.[v]
For healthcare providers sued based on negligence, the ordinary standard of care does not equate directly with the medical professional’s standard of care.
In an ordinary negligence case, a jury may find for the plaintiff by concluding that the defendant’s conduct fell below a “reasonable man” standard [of care]. Direct evidence of compliance … with a given standard of care is not ordinarily considered. The jury merely weighs a given risk against the utility of conduct …. In addition, outside opinions need not impact the jury-the. Jury applies community standards in drawing upon its collective experience to reach a verdict.’
Therefore, this reasonableness standard does not apply to professionals, such as [healthcare providers] ….”
Professionals must not only “exercise reasonable care in what they do, but [must also] possess a minimum amount of special knowledge and ability.” The jury is usually instructed to consider “the skill and learning commonly possessed by members of a profession in good standing.”
In professional malpractice cases, it thus considers the standard of “what is customary and usual in a profession.” This gives the court-recognized professions, most notably the medical profession, the privilege of setting its own standards of practice.[vi]
Thus, professional negligence and medical malpractice among medical providers involve a breach of the duty of care between medical professionals and their clients.
Breach of duty in medical malpractice cases
Medical malpractice cases fall into common types of malpractice litigation:
- Lack of due care
- Lack of informed consent/battery
- Vicarious liability/respondent superior/negligent supervision
- Injury to third parties
- As well as, Abandonment.[vii]
Hence, a physician’s failure to exercise “due care” is considered the most common reason for a plaintiff to file a malpractice lawsuit.[viii]
Moreover, due care is what most people generally associate with the phrase “medical malpractice” and means that a patient received a lack of proper medical care or improper medical treatment.[ix]
To prevail in a medical malpractice claim, a plaintiff must establish at least three elements:
- The existence of a patient-physician relationship. Because a relationship of this type means that the provider has officially consulted about, treated, or given advice to a patient. Thus, the existence of this formal relationship creates a duty on the part of the physician.
- A breach in the “standard of care” occurred. The physician provides that care to the plaintiff/patient. Moreover, the plaintiff must demonstrate the care received was inadequate compared to the care commonly provided by most physicians practicing under similar circumstances.
- The breach in “the standard of care” is the cause of the damage to the plaintiff/patient. The patient must be able to prove that actual damage did occur unless the doctrine of res ipsa loquitur is applied. For example, certain results cannot happen in the absence of negligence. [x]
The medical standard of care before and after 1930
Before the 1930s, the “standard of care” was defined by the legal concept of “custom.”, which relied largely on a patchwork of common sense and precedent to determine the correct solution in cases. Also, the reliance on custom as a legal norm was not suspicious back then.
The medical malpractice cases themselves tended to divide into three types:
- Cases that treated evidence of custom as inadmissible
- The Cases that treated custom as an “unbending” test of negligence
- Moreover, the cases that treated custom as evidence of due care but not conclusive on that issue.[xi]
Furthermore, the largest number of cases tended to adhere to the position that custom is only evidence of the role of due care.
Two cases are the basis for the modern legal concept of standard of care
Following are the cases that are the basis for the modern legal concept of standard of care as it is applied in medical malpractice law today:
The T.J. Hooper,[xii] and Helling v. Carey[xiii].
The T.J. Hooper,[xiv]
The T.J. Hooper case is not related to medicine. However, it helped shape how the law understands custom and the standard of care and served as the foundation for the seminal medical malpractice case Helling v. Carey[xv] in 1974.
In the admiralty case, The T. J. Hooper, Supreme Court Justice Learned Hand addressed the relationship between custom and negligence.
The facts of the case are as follows:
- The tugboat The T. Hooper, along with several other tugs, traveled north along the Atlantic coast when it was caught in a storm that resulted in the loss of its barge and cargo.
- It was supposed that if the captain of the T. J. Hooper had carried an adequate receiving set, he would have received warning of the storm from the naval station at Arlington, Virginia, in enough time to put the barge and its cargo safely behind the Atlantic breakwater.
- Hence, such an action would have enabled the captain to avoid the damage caused by the storm.
- But due to the storm, the tug owner was sued by both the owners of the barge and the cargo for their loss.[xvi]
The critical question was whether the tug should have carried a receiving set on board to meet the requirements of good care.
Judge Hand maintained that there was no custom that tugs should carry receiving sets while in transit. However, the failure of their being a custom does not prevent the existence of a standard of care, he explained. Custom does not dictate the duty of care.
There are, no doubt, cases where courts seem to make the general practice of the calling the standard of proper diligence. We have indeed given some currency to the notion ourselves…. Indeed, in most cases, reasonable prudence is in fact common prudence; but strictly it is never its measure; a whole calling may have unduly lagged in the adoption of new and available devices. It may never set its own tests; however persuasive be its uses. Courts must in the end say what is required; there are precautions so imperative that even their universal disregard will not excuse their omission.[xvii]
Helling v. Carey[xviii]
So, The T.J. Hooper[xix] laid the foundation for an important trial in medical malpractice, Helling v. Carey,[xx] more than 40 years later. The plaintiff (Helling) sued the defendant (Carey) for medical negligence due to his failure to perform a pressure test for glaucoma.
But the medical experts in the case established that the standard of care for ophthalmology did not require routine pressure tests for glaucoma upon patients under 40 years of age.
Therefore, the trial court favored the defendant maintaining that Carey met the customary standard of care.
However, the Supreme Court of Washington disagreed.
Referencing Supreme Court Justice Oliver Wendell Holmes, the court opined that compliance with a custom as the standard of care for the profession does not insulate the defendant from liability.
“What usually is done may be evidence of what ought to be done, but what ought to be done is fixed by a standard of reasonable prudence, whether it usually is complied with or not.”
Citing The T.J. Hooper, the court went on to say that:
“In most cases reasonable prudence is in fact common prudence; but strictly it is never its measure; a whole calling may have unduly lagged in the adoption of new and available devices. It never may set its own tests; however persuasive be its usages. Courts must in the end say what is required; there are precautions so imperative that even their universal disregard will not excuse their omission.”[xxi]
Hence, these two cases established that while the customary practices have great weight regarding the standard of care, the custom is not determinative in medical malpractice and negligence. In other words, what is commonly done (i.e., custom) may not be enough, and some things may not be standard but are still reasonable for the physician to perform. And it is up to judges and juries to determine whether an action is “reasonable” or “unreasonable” and not the medical profession.
Modern Standard of Care: Minimal competence
Hall v. Hilbun Medical Malpractice Case:
In the 1985 case of Hall v. Hilbun,[xxii] a patient (Mrs. Hall) presented to her physician for abdominal pain. Dr. Hilbun, a general surgeon, was consulted and operated on the patient for a small bowel obstruction. Because Mrs. Hall had discomfort throughout the night, but Dr. Hilbun didn’t know that. She died of respiratory failure in the morning.
Initially, he won the case because the testimony of two witnesses that discussed the national standard of care for a surgeon was absent. However, on appeal, Dr. Hilbun was found liable because he did not provide minimally competent post-operative care.[xxiii]
Chief Justice C.J. Robertson stated:
“Medical malpractice is a legal fault by a physician or surgeon. It arises from the failure of a physician to provide the quality of care required by law. When a physician undertakes to treat a patient, he takes on an obligation enforceable at law to use minimally sound medical judgment and render minimally competent care in the course of the services he provides. A physician does not guarantee recovery. If a patient sustains injury because of the physician’s failure to perform the duty he has assumed under our law, the physician may be liable in damages. A competent physician is not liable per se for a mere error of judgment, mistaken diagnosis or the occurrence of an undesirable result.”[xxiv]
Simply stated, malpractice can only be said to occur when a physician’s behavior dips below minimal competence. The assumption of liability based on outcome disregards how the way of delivering care and the level of competence it requires.
McCourt v. Abernathy Medical Malpractice Case[xxv]
This is another case bearing similar characteristics to Hilbun regarding minimal competence.
So, the facts of the case are as follows:
Mrs. McCourt presented for several complaints over three days to her physician, Dr. Abernathy. She was diagnosed with an infection to her finger due to a pinprick, which had become infected while she was working in manure. Over the three days, Dr. Abernathy and his partner had seen her several times. Meanwhile, the wound became infected, Mrs. McCourt became ill, and ultimately died when the infection became septic.
The court ruled, based on the testimony of experts
Based on the testimony of experts, the court ruled that the physicians acted below the standard of care. What is significant about this case is the instruction of the trial judge to the jury.
The judge stated:
“The mere fact that the plaintiff’s expert may use a different approach is not considered a deviation from the recognized standard of medical care. Nor is the standard violated because the expert disagrees with a defendant as to what is the best or better approach in treating a patient. ….
… the degree of skill and care that a physician must use … is that which would be exercised by competent practitioners in the defendant doctor’s field of medicine. … whether a physician … deviated from the … standard of care … is to be determined by what a … prudent physician would have done under the same or similar circumstances.
. . . .
Negligence may not be inferred from a bad result. …. [The physician] … undertakes only to meet the standard of skill possessed generally by others practicing in his field under similar circumstances.
… a mere mistake in diagnosis or error in judgment alone is insufficient to support a finding of malpractice.”[xxvi]
It means that here, the judge re-enforced that
- The level of care provided by a physician must be of minimal competence,
- Besides, the level of care may differ from that of other physicians
- Moreover, a bad outcome does not mean that the physician had not followed the standard care.
Johnston v St. Francis Medical Center[xxvii]
Furthermore, in 2001, another case helped shape the modern definition of standard of care, Johnston v St. Francis Medical Center.[xxviii]
The facts of the care are as follows:
Emmette Johnston, a 79-year-old male presented with abdominal complaints to Union General Hospital. He was transferred to St. Francis Medical Center, where several tests were performed.
Furthermore, he was examined by several Drs while at the hospital. Mr. Johnston’s initial test results proved inconclusive. They performed additional tests, but his symptoms became worse. The ICU physician thought Mr. Johnston might have an aortic aneurysm, and laparotomy confirmed that. But the patient died in the operating room.
Resultantly, Mr. Johnston’s family maintained that the physicians should have diagnosed the aneurysm earlier. The experts, in general, indicated that this was a complex case to diagnose.
The court ruled in favor of the physicians
The court held that while the aneurysm was obvious on radiographs and labs once the diagnosis was made, hindsight cannot be used as a measure for evaluating whether a physician adhered to the standard of care. The diagnosis of the aneurysm was “possible” in this case, but it was also a very difficult diagnosis to make and could be easily missed. Therefore, missing the diagnosis did not amount to a breach in the standard of care.
Johnston v St. Francis stands in distinction to Helling v. Carey.
It affirms that physicians must practice at a level of care ordinarily exercised by their peers as a rule. However, it is unreasonable to attach liability to the actions of physicians, which reflect a minimal level of competence ordinarily exercised by their peers, particularly in the most challenging cases.
There are several situations in which this basic principle can be applied.
For example, an obstetrician/gynecologist (ob/gyn) could be held liable for a patient’s outcome if she notices an intrauterine tumor and fails to seek the counsel of a surgical oncologist. As well as if it is proven that the majority of ob/gyns in a similar position would seek counsel.
However, it is worth noting that a plaintiff would be required to prove that the breach caused the harm to establish liability.[xxix]
At the end of the day,
[p]roof of the standard of care, i.e., proof of what a reasonable doctor would or would not have done under given circumstances is established by the “expert testimony” of another physician. There are no general, agreed upon, concrete and established guidelines for evaluating the actions of physicians against “the standard.”[xxx]
Expert witness testimony as proof of liability to Medical Malpractice
“Proof of the standard” within the litigation context is established by expert witness testimony from a physician. However, how the proof of the standard brings to light the paradoxical nature of expert testimony.
“We call expert witnesses to testify about matters that are beyond the ordinary understanding of lay people. (that is both the major practical justification and a formal legal requirement for expert testimony), and then we ask lay judges and jurors to judge their testimony.”[xxxi]
Essentially, the judge and the jury have to accept the expert’s testimony as proof. So, an expert can be credible and provide factually accurate testimony. However, neither is a necessary condition of the other. In a sense, the proof is reduced to the ‘likability’ of the expert. Unless the judge and jury are experts, an expert can say that a physician’s conduct does not meet practice norms and fails to meet the standard of care. Whether the story is accurate or fiction is fundamentally unknowable.
Therefore, we just have a jury and judge who are susceptible to a physician expert who, if properly groomed, offers testimony akin to advocacy. The testimony which arguably can be a fiction too.
Professors Ivković and Hans cite
Peter Huber’s argument that the courts have fallen victim to “junk science” is based on his view that when juries and credulous judges attempt to evaluate expert scientific testimony in the courtroom, many are unable to separate sound science from fanciful fiction. The result: huge awards that are said to be based more on the jury’s sympathy than on credible scientific evidence linking a defendant’s actions or products to a plaintiff’s injuries.[xxxii]
But the second issue is easier to identify.
Because Simply stated, is it reasonable to assume that physician experts will testify in the negative about the practice behavior of a colleague? There is little evidence to suggest otherwise, particularly in those cases, which straddle the question of minimal competence.
Hence, Medical regulatory boards constantly grapple with this question.
Despite the physician community being heavily self-regulated regarding liability issues, can we expect physician experts to be forthcoming about the standard of care when speaking about the competence of their colleagues?
Sometimes, credibility is [a] function of the expert’s credentials, the attorney’s presentation of the credentials, or how well the expert handles cross-examination. Ultimately, it is the believability of the expert’s testimony by the jury, rather than any absolute medical doctrine, that determines the specifics of standard of care.[xxxiii]
There are circumstances in which we don’t require proof. However, this occurs in cases where the negligence is obvious. For example, a surgeon cuts off the wrong leg. In cases of this type, the doctrine of res ipsa loquitur (res ipsa) is all that needs to be applied. However, establishing the elements of res ipsa historically has not always been easy to establish in the malpractice context.
Circumstantial evidence as proof of liability to medical malpractice cases
Res ipsa loquitur is a Latin term, which means ‘the thing speaks for itself.” So, in the common law of negligence, the doctrine of res ipsa states that the available evidence without direct evidence of the defendant’s conduct can conclude the elements of duty of care and breach.[xxxiv] In other words, res ipsa permits the plaintiff to put forward circumstantial evidence to prove negligence.[xxxv]
John H. Wigmore famously outlines three elements of res ipsa to be established before a jury can infer that the defendant’s negligence and medical malpractice caused the harm in question:
- That the injury must be the kind that ordinarily does not occur in the absence of someone’s negligence
- The injury was due to an action in the exclusive control of the defendant
- Moreover, the injury was not due to any voluntary action or contribution on the part of the plaintiff.[xxxvi]
While the plaintiff may establish negligence under res ipsa, it is a rebuttable inference.[xxxvii]
Early courts did not apply res ipsa loquitur in cases involving medical malpractice
Judicial thought of the time found it difficult to establish the first element of the res ipsa loquitur doctrine — the requirement that the injury is the kind which ordinarily does not occur in the absence of someone’s negligence.[xxxviii]
First, whereas injuries from accidents involving falling flour barrels and the like are almost always attributable to the negligence of the person exercising control over the barrels, injuries in cases of alleged medical malpractice may result from a variety of causal agents other than the negligence of the defendant, such as the onset of disease or a preexisting medical condition.
Moreover, many of the procedures called into question in medical malpractice cases are inherently so risky that injuries may occur even when physicians are exceedingly careful. Finally, the very rationale that requires the plaintiff to demonstrate a standard of care in the bulk of medical malpractice cases implies that “there was no commonsense basis on which a jury could infer negligence merely from the adverse event.” All of these explanations tend to show that juries in medical malpractice actions will rarely be able to conclude, based on their common experience alone, that the injury was one that does not ordinarily occur in the absence of negligence.[xxxix]
The reason why many early judicial scholars considered res ipsa an improper fit for medical malpractice cases:
The reason why many early judicial scholars considered res ipsa an improper fit for medical malpractice cases is also why expert medical evidence is required to establish a case of negligence.[xl]
In general, juries do not have the expertise to judge whether a physician has been negligent.
Thus, plaintiffs must rely on medical experts to
- Explain the standard of care and
- In addition, testify as to whether there has been a breach of the standard of care.
On that account, res ipsa and medical expert testimony as strategies for establishing negligence are incongruent.[xli] [xlii]
Today, several states[xliii] have expanded their thinking regarding the application of res ipsa to medical malpractice cases. So, one justification for expansion is the special responsibility of medical personnel for a patient’s safety, implicit in the practice of medicine. On that account, “res ipsa seems to be the most appropriate … doctrine available to effectuate the physician’s duty; and in view of the common law’s pragmatic method of growth and development, it is certainly not surprising that [states have] … seized upon [it] for this purpose.”[xliv]
Medical Error or Medical Malpractice
Medical negligence is always based on medical error, but the medical error does not constitute medical negligence.
Because medical error identifies a wide range of situations of varying severity, only a few are legally actionable. A medical error may be harmless or unavoidable, and harmful. Moreover, it may result from extremely careless conduct and deviate from the standard of care but not proximately cause injury to a patient. These are but a few examples of the situations in which medical error may arise.
A well-functioning legal system rarely makes moral assessments of people or their lives. Instead, it makes moral assessments of people’s actions taken one at a time.
In this regard, the distinction is made because
“People and their lives matter morally, and both people and their lives are partly constituted by their actions, but not always at the same time, by the same actions. The two can be bifurcated. In particular, [. . . ] some actions morally blemish a life without morally blemishing the person who lives it.”[xlv]
Such is the nature of tortious actions. On that account, if the aim of our legal system is to make moral assessments of people’s actions, then it must distinguish between actions that are wrong and actions that are wrongful.
As I see it, Tort law is based on the notion that individuals have the right not to be harmed, and any breach of that right is a result of wrongdoing.
However, is a breach the same as doing something ‘wrongful’? Must the law regard it as a behavior that should be regulated? And, ultimately, should a breach trigger an action in damages?
The distinction between doing the wrong thing and doing something wrongful is of importance in our legal systems.
One case which illustrates this point is Vincent v. Lake Erie Transportation Co.[xlvi]
Vincent v. Lake Erie Transportation Co.[xlvii]
In Vincent, the plaintiff’s dock secured the steamship Reynolds while unloading cargo. Suddenly, a severe storm developed. The Captain of the Reynolds decided to keep the ship secured to the dock because it was too dangerous to sail. The Reynold’s damaged the plaintiff’s dock during the storm, and the dock owner sued for damages.
The Minnesota Supreme Court ruled that the Captain had not done the wrong thing
Because he had acted with ample justification, but he had acted wrongfully. Because he had breached a duty owed to the plaintiff not to secure his ship to the pier without permission). In other words, the mere fact that the Captain was justified in acting wrongfully does not mean that he did not act wrongfully and does not by itself block his liability to pay damages to the plaintiff.
Wrongdoing is the breach of duty, and given the thinking in Vincent, countervailing reasons can never defeat the duty. However, a breach of a duty does not make a wrongdoing wrongful. It is the reason for the behavior that conveys this character. Reasons matter for rational actors. Thus, it is the rational actor, anyone to whom reasons apply, who seeks to avoid wrongdoing.[xlviii]
The legal scholar, John Garner, claims that the rational actor has two duties when seeking to avoid wrongdoing
- The first is to do no harm. That duty is breached when the rational actor harms the plaintiff.
- Moreover, the second duty is to pay damages for the breach. (It is important to note that the legal existence of the second duty is wholly dependent on the breach of the primary duty.) By paying damages, the rational actor makes the plaintiff whole through the imperfect performance of his/her primary duty in the guise of damages intended to rectify or repair the harm.[xlix]
Garner suggests that there is no need to establish a rationale for the existence of a secondary duty.[l] He maintains that the purpose of tort law is to rectify harms resulting from a breach of duty by the rational actor, which is distinct from consideration of damages as a deterrent or determining whether and when damages ought to be enforceable through the law. Although I disagree with Garner on this point, I appreciate his distinction between primary and secondary duties.
Damages in the context of medical malpractice
Damages are a feature of tortious behavior, which necessarily follow from a duty that a rational actor has breached. However, thinking of the rational actor’s duty as bifurcated into two parts, one primary and the other secondary, is unnecessary. Because this is particularly the case in medical malpractice actions. So, it does not capture how rational actors think in the healthcare setting. A fully informed healthcare provider knows that a breach of duty necessarily entails potential damages. This is, properly described as, the risk associated with the healthcare profession.
While Garner’s analysis does not properly fit torts in the medical setting. But he correctly distinguishes the reparative quality of damages paid by the rational actor.
For example, the amount paid for the harm, as arbitrary and (in my thinking) wholly dependent on legal doctrine and with public policy.
On that account, as mentioned earlier, reasons matter. For example, why did the Captain of the Reynolds decide to moor his ship to the plaintiff’s pier during the storm? Was the Captain of Reynold’s action justified? The answer to questions of this type determines the reformative quality of the damages paid by the rational actor.
Rational actors have different reasons for their behavior
Some act or fail to act because they are afraid, others because they are selfish, and others because they are shortsighted. When wrong actions cause harm due to faulty reasoning, we can say that the action is unjustified or wrongful. In contrast, a rational actor’s behavior is justified if he or she acts for prudent, brave, or thoughtful reasons. Therefore, the moral ascription of this sort, an assessment of the actor’s action and not his or her character, are qualitatively the basis on which reparative damages are determined.
So, it is the jury’s duty to consider the reasons for a medical provider’s actions before determining whether their actions are medical errors or reflect medical negligence or medical malpractice. While all medical errors are wrong, all medical errors are not per se negligent. Moreover, the difference reflects the distinction between a breach in duty based on a justified reason and a breach based on an unjustified one. Whether a reason is justified or unjustified is, as mentioned, wholly dependent on legal doctrine and public policy. But it is this moral barometer, which gives the jury permission to determine damages.
The trouble with measuring damages
The foundation for this article is built on the assumption that liability is established. The defendant did something harmful or caused something harmful to happen, which reduced the plaintiff’s future happiness and/or earnings, and the jury is called on to place a value on that harm.
“In almost all cases in which damages are recoverable, the measure of compensation involves an inquiry into the question of value. …. [W]hen the recovery is based on personal injury, a part of the damages at least must be made up of [economic] … elements, such as the … value of the medicine administered, etc. It is only when we attempt to estimate the damages of pain and suffering [i.e., compensatory non-economic damages] … that we pass beyond the region of value in its true pecuniary sense.”
Setting aside such consideration, the value of an object (i.e., property, time, labor, or services), which is the subject matter of a tort is what that object is bought or sold for in the market, and “the market price [of the object] shows what it would cost the plaintiff to be put in as good a position as if the tort ha[d] not been committed ….”
(Sedgwick, Theodore, A Treatise on the Measure of Damages)
“[T]he measure of recovery, where such property can be procured in the market, is the value of it in the market and not the cost; (*) for the owner of the property is fully compensated for it by a sum of money which will enable him to replace it. The market value must be ascertained by a money standard based on evidence. It cannot be assessed on conjecture. (*) It is the actual cash market value, not what the property would sell for under special or extraordinary circumstances.(**) Proof of a single sale is not enough to establish a market value.(**) The “market value” of an article requires the investigation of the actual condition of the market, and does not warrant the consideration of the conjectural consequences of a state of things which did not exist(.)” (Sedgwick, Theodore, A Treatise on the Measure of Damages)
Despite Sedgewick’s clear position on the measurement of economic damages, he cites the difficulty in measuring non-economic damages
Simply stated, the problem with quantifying pain and suffering is that there is no objective measure for another person’s pain. “[W]hether evaluating ‘loss of companionship’ or ‘lowered quality of life’, it is impossible to place value on what one person or another sees as a measure of justice when pain and suffering are involved.[li]
An injured amateur violinist can no longer practice her beloved hobby. A crippled spouse can no longer enjoy sexual relations. These psychic injuries are real, not “made up,” damages, but they have no readily available market equivalents. To satisfy her burden of proof, a tort victim can’t cite market rates. Instead, she may show a “day in the life” film that illustrates her misery and ask the jury to award an amount it finds “just.” … [W]hile a judge can quash an economic damage award that goes beyond the evidence, no such quashing is possible for pain and suffering awards precisely because there are no market standards that set their measure. .[lii]
Measuring Medical damages: Sedgwick called into question
Over several years, I have observed a steady increase in the number of cases demanding tens of millions of dollars in future medical damages. When possible, attorneys representing injured parties enter into the letter of protection agreements (LOPs) with the plaintiffs’ medical providers, guaranteeing payment in the future for medical expenses to ensure large medical damage awards.
Therefore, many see increasing demands for future medical damages as a reaction by plaintiff attorneys who have chosen to recharacterize non-economic damages as economic ones in the form of future medical expenses. The assumption seems obviously true. Others view the recharacterization as the plaintiff’s bar’s response to the placement of caps on non-economic damages. Moreover, there is growing sentiment that caps are undermining the purpose of non-economic damages.
So, I am not a fan of damage caps. But the claim that caps undermine the purpose of non-economic damages seems reactive and is likely a red herring. Moreover, assuming damage caps might undermine the purpose of damages relies on the supposition that non-economic damages cannot be predictably measured. While legal scholars following the Sedgwick tradition might accept this view, it is more likely that assuming non-economic damages cannot be measured undermines their purpose. Furthermore, more importantly, the assumption opens the judicial system to weakening the compensatory nature of non-economic damages.
The threat to compensatory non-economic damages
The belief that non-economic damages are unmeasurable threatens their compensatory nature. Damage caps and the increased use of SOPs, for instance, are merely a symptom of this problem. Thus, to overcome the challenge, the notion that torts offers one way to determine or talk about damages must be cast aside.
Because Torts offers two ways to determine or talk about non-economic damages:
- The language of economic efficiency,
- and the language of fairness.
Each is to measure damages but for different reasons. The language of efficiency measures damages to maximize the public welfare while relying on a vocabulary to help it achieve this end. The language of fairness measures damages to deter and correct behavior and to protect individual rights against the public’s welfare. It also relies on a vocabulary to help it achieve this purpose. Both efficiency and fairness are appropriate ways of measuring damages. But each has a different purpose.
Let us say (1) that … when we describe non-psychological, or “physical”, phenomena; we … express all that we know, or believe, about [that] … phenomena in a language which … [does not convey intent, design, purpose, or aim. This is non-intentional language]. And let us say (2) that, when we wish to describe … psychological phenomena in particular, when we wish to describe thinking, believing, perceiving, seeing, knowing, wanting, hoping and the like either (a) we must use language which is intentional or (b) we must use a vocabulary which we do not need to use when we describe non-psychological, or”“physical”, phenomena.[liii]
Thus, the distinction between non-intentional and intentional language is not trivial
It is intended to make clear the reason why some legal scholars have mistakenly drawn the conclusion that non-economic damages are unmeasurable. Simply stated, it is a categorical mistake. When asking for a fairness measure of damages and expect economic efficiency, the mistake is made and when we seek an efficiency measure expecting fairness. It becomes possible for efficiency and fairness-focused torts approaches to make different yet valuable statements about non-economic damages by avoiding categorical mistakes.
Experts and the valuation of medical expenses in Medical Malpractice or Errors
In general, the value of medical goods and services can vary widely between experts and can be difficult to predict, particularly within the context of medical malpractice in which future medical expenses may be included. Thus, multi-jurisdictional issues related to healthcare costs, insurance, availability, and management of public programs can complicate the valuation.
In the US, medical insurance has been left primarily in the realm of the states
In this regard, states have traditionally defined their relationships with carriers, the limitations on insurance programs, as well as how specific conditions and procedures may be handled, even (to some extent) with respect to federally sponsored programs such as Medicaid. The complications inherent in the varied application of state regulations is one challenge in providing accurate estimates of medical expenses on a wide and repeatable basis in the US Properly valuing medical expenses is not only important to avoiding excessive or insufficient damage awards to injured plaintiffs, but also to an aging population, private entities and public institutions looking to manage their future medical costs.
Confusion about the value of medical expenses has led many experts to equate charged or billed rates to a reasonable value. Moreover, this confusion has enabled plaintiff attorneys to justify billed or charged rates as reasonable under the auspices of a Letter of Protection. Therefore, when these amounts are presented to juries, they run the risk of inflating the value of damage awards. While Letters of Protection may be useful for plaintiffs, an LOP can also serve as a mechanism for defendants to prove that excessive medical bill amounts may be inflated. Properly determining the reasonable value of medical expenses yields this outcome and avoids inflated damage values.
How to calculate the reasonable value of medical expenses?
On the question of reasonable value, the courts recognize that billed amounts alone cannot be the basis for the reasonable value of future medical expenses.[liv] [lv] Rather, the determination of reasonable value must consider other amounts paid or negotiated in the market.[lvi]
When we describe some medical expenditure price as fair and reasonable, then that amount is thought to exemplify the item’s reasonable value.
Because price analysis is the tool to determine the reasonable value. And it reflects the willingness of market payers to purchase goods or services at a given price. The form or degree of that analysis hinges on the type of purchase (i.e., an office visit versus a prosthetic leg). And the context in which pricing occurs (private market versus public market).
Essentially, price analysis is a process for comparing the price of the items to be analyzed with known indicators of reasonableness.
On that account, the determination of reasonable value requires at a minimum:
- The identification of all practically obtainable information about the pricing of the goods or services sold in the healthcare market
- And the evaluation of all ‘statistically significant’ data measuring the behavior of payers in the market.
Conclusion: Reasonable value is central to determining damages
An efficiency-based torts system requires that we consider the reasonable value to determine non-economic damages. Thus, this reasonable value reflects the ‘fair’ amount any person in the plaintiff’s position would pay for the selfsame goods and services.[lvii] More importantly, it quantifies the experience of cost shared by all market participants. On that basis, one can, for example, calculate non-economic damages as a function of the reasonable value of medical expenditures (–i.e., the shared experience of cost by similarly situated market participants) measured against the plaintiff’s age, the severity of the injury (based on an established cost data such as the NAIC Claims Cost Trend[lviii]), and a sliding scale multiplier to distinguish values within ranges. The point is that non-economic damages are capable of being measured.
On the other hand, because non-economic damages are measurable for purposes of efficiency, a fairness-based tort system does not lose its value. Fairness is important because it defers to the everyday language of beliefs and desires, which surround human action – it values the needs of the individual. More importantly, a fairness-based tort system acknowledges the moral authority of the jury to measure damages. Practically applied, the judge may be best suited to determine on a case-by-case basis whether non-economic damages are best addressed through efficiency or fairness.
My conclusions are not intended as a solution to increasing demands for damages. Rather, they are designed to reframe the discussion about the value of compensatory non-economic damages.
On my account, we avoid being saddled with the notion that non-economic damages are unmeasurable if we accept:
- There is more than one approach to the determination of damages,
- We can use different approaches to the determination of damages for different purposes,
- The different approaches to the determination of damages are equally valuable
- And, reasonable value is essential to the determination of damage awards
Explanation and Citations:
[i] Each state defines and regulates tort law. When the federal government or an agent of it is involved, the Federal Tort Claims Act may be invoked and will rely on that state’s regulation of tort law.
[ii] Tara Ramanathan, (2014) “Law as a tool to promote healthcare safety”, Clinical Governance: An International Journal, Vol. 19 Issue: 2, pp.172-180, https://doi.org/10.1108/CGIJ-03-2014-0015
[iii] Tara Ramanathan, (2014) “Law as a tool to promote healthcare safety”, Clinical Governance: An International Journal, Vol. 19 Issue: 2, pp.172-180, https://doi.org/10.1108/CGIJ-03-2014-0015
[iv] Alex Stein, The Domain of Torts, Columbia Law Review.
[v] Henry T. Terry, Negligence, Harvard Law Review, Vol. 29, No. 1 (Nov., 1915), pp. 40-54.
[vi] Markowitz, Charles (2002) “Medical Standard of Care Jurisprudence as Evolutionary Process: Implications Under Managed Care,” Yale Journal of Health Policy, Law, and Ethics: Vol. 2: Iss. 1, Article 3. Available at: http://digitalcommons.law.yale.edu/yjhple/vol2/iss1/3
[vii] Gregg J. Gittler, and Ellie J. C. Goldstein. “The Elements of Medical Malpractice: An Overview.” Clinical Infectious Diseases23, no. 5 (1996): 1152-155. http://www.jstor.org/stable/4459800.
[viii] Patricia Danzon, Liability for Medical Malpractice, Journal of Economic Perspective
[ix] Gregg J. Gittler, and Ellie J. C. Goldstein. “The Elements of Medical Malpractice: An Overview.” Clinical Infectious Diseases23, no. 5 (1996): 1152-155. http://www.jstor.org/stable/4459800.
[x] Gregg J. Gittler, and Ellie J. C. Goldstein. “The Elements of Medical Malpractice: An Overview.” Clinical Infectious Diseases23, no. 5 (1996): 1152-155. http://www.jstor.org/stable/4459800.
[xi] Richard A. Epstein, The Path to “The T. J. Hooper”: The Theory and History of Custom in the Law of Tort, The Journal of Legal Studies, Vol. 21, No. 1 (Jan., 1992), pp. 1-38.
[xii] The T. J. Hooper, 60 F. 2d 737 – Circuit Court of Appeals, 2nd Circuit, 1932.
[xiii] Helling v. Carey, 83 Wn.2d 514, 519 P.2d 981, 67 ALR3d 175 (1974).
[xiv] The T. J. Hooper, 60 F. 2d 737 – Circuit Court of Appeals, 2nd Circuit, 1932.
[xv] Helling v. Carey, 83 Wn.2d 514, 519 P.2d 981, 67 ALR3d 175 (1974).
[xvi] The T. J. Hooper, 60 F. 2d 737 – Circuit Court of Appeals, 2nd Circuit, 1932.
[xvii] The T. J. Hooper, 60 F.2d 737, Note 4 at 740, (2d Cir. 1932).
[xviii] Helling v. Carey, 83 Wn.2d 514, 519 P.2d 981, 67 ALR3d 175 (1974).
[xix] The T. J. Hooper, 60 F.2d 737, Note 4 at 740, (2d Cir. 1932).
[xx] Helling v. Carey, 83 Wn.2d 514, 519 P.2d 981, 67 ALR3d 175 (1974).
[xxi] Helling v. Carey, 83 Wn.2d 514, 519 P.2d 981, 67 ALR3d 175 (1974).
[xxii] Hall v. Hilbun, 466 So. 2d 856, 883 (Miss. 1985)
[xxiii] Hall v. Hilbun, 466 So. 2d 856, 883 (Miss. 1985)
[xxiv] Hall v. Hilbun, 466 So. 2d 856, 866 (Miss. 1985)
[xxv] McCourt v. Abernathy, 318 S.C. 301 (S.C. 1995)
[xxvi] McCourt v. Abernathy, 318 S.C. 301 (S.C. 1995)
[xxvii] Johnston v. St. Francis M., 799 So. 2d 671 (La. Ct. App. 2001)
[xxviii] Johnston v. St. Francis M., 799 So. 2d 671 (La. Ct. App. 2001)
[xxix] Gregg J. Gittler and Ellie J. C. Goldstein, The Elements of Medical Malpractice: An Overview, Clinical Infectious Diseases, Vol. 23, No. 5 (Nov., 1996), pp. 1152-1155.
[xxx] Gregg J. Gittler and Ellie J. C. Goldstein, The Elements of Medical Malpractice: An Overview, Clinical Infectious Diseases, Vol. 23, No. 5 (Nov., 1996), pp. 1152-1155.
[xxxi] Sanja Kutnjak Ivković and Valerie P. Hans, Jurors’ Evaluations of Expert Testimony: Judging the Messenger and the Message, Law & Social Inquiry, Vol. 28, No. 2 (Spring, 2003), pp. 441-482.
[xxxii] Sanja Kutnjak Ivković and Valerie P. Hans, Jurors’ Evaluations of Expert Testimony: Judging the Messenger and the Message, Law & Social Inquiry, Vol. 28, No. 2 (Spring, 2003), pp. 441-482.
[xxxiii] Sanja Kutnjak Ivković and Valerie P. Hans, Jurors’ Evaluations of Expert Testimony: Judging the Messenger and the Message, Law & Social Inquiry, Vol. 28, No. 2 (Spring, 2003), pp. 441-482.
[xxxiv] Karyn K. Ablin, Res Ipsa Loquitur and Expert Opinion Evidence in Medical Malpractice Cases: Strange Bedfellows, Virginia Law Review, Vol. 82, No. 2 (Mar., 1996), pp. 325-355; Harper, Fowler V. and Heckel, Fred E., “Effect of the Doctrine of Res Ipsa Loquitur” (1928). Articles by Maurer Faculty. Paper 1956; Fridman, G. H. L. “The Myth of Res Ipsa Loquitur.” The University of Toronto Law Journal, vol. 10, no. 2, 1954, pp. 233–244.
[xxxv] Harper, Fowler V. and Heckel, Fred E., “Effect of the Doctrine of Res Ipsa Loquitur” (1928). Articles by Maurer Faculty. Paper 1956.
[xxxvi] John H. Wigmore, Evidence (2d ed. 1923) § 2509, “What is the final shape of the rule can hardly be predicted. But the following consideration ought to limit it:
(1) The apparatus must be such that in the ordinary instance there is no chance of any injurious operation unless from a careless construction, inspection, or user;
(2) Both inspection and user must be there at the time of the injury in the control of the charged party; (3) The injurious occurrence or condition must have happened irrespective of any voluntary action at the time by the person injured.”
In the language of Lamar, J., in Chenall v. Palmer B. Co., 117 Ga. 106, 43 S. E. 443 (1903) : “All that the plaintiff must do in the first instance is to show that the defendant owned, operated, and maintained, or controlled and was responsible for the management and maintenance of, the thing doing the damage; that the accident was of a kind which, in the absence of proof of some external cause, does not ordinarily happen without negligence.”
[xxxvii] Fridman, G. H. L. “The Myth of Res Ipsa Loquitur.” The University of Toronto Law Journal, vol. 10, no. 2, 1954, pp. 233–244.
[xxxviii] Karyn K. Ablin, Res Ipsa Loquitur and Expert Opinion Evidence in Medical Malpractice Cases: Strange Bedfellows, Virginia Law Review, Vol. 82, No. 2 (Mar., 1996), pp. 325-355.
[xxxix] Karyn K. Ablin, Res Ipsa Loquitur and Expert Opinion Evidence in Medical Malpractice Cases: Strange Bedfellows, Virginia Law Review, Vol. 82, No. 2 (Mar., 1996), pp. 325-355.
[xl] Rubsamen, David S. “Res Ipsa Loquitur in California Medical Malpractice Law. Expansion of a Doctrine to the Bursting Point.” Stanford Law Review 14, no. 2 (1962): 251-83. doi:10.2307/1226769.
[xli] Thomas A. Eaton, Res Ipsa Loquitur and Medical Malpractice in Georgia: A Reassessment (1982)..
[xlii] Karyn K. Ablin, Res Ipsa Loquitur and Expert Opinion Evidence in Medical Malpractice Cases: Strange Bedfellows, Virginia Law Review, Vol. 82, No. 2 (Mar., 1996), pp. 325-355.
[xliii] Louisell and Williams identify Alabama, Louisiana, Pennsylvania, Colorado, and Arkansas as a few of the states that by the 1960s permitted the application of Res Ipsa Loquitur in medical malpractice cases. David W. Louisell and Harold Williams, Res Ipsa Loquitur–Its Future in Medical Malpractice Cases, 48 Calif. L. Rev. 252 (1960).
[xliv] David W. Louisell and Harold Williams, Res Ipsa Loquitur–Its Future in Medical Malpractice Cases, 48 Calif. L. Rev. 252 (1960).
[xlv] John Gardner, Wrongs and Faults, The Review of Metaphysics, Vol. 59, No. 1 (Sep., 2005), pp. 95-132 https://www.jstor.org/stable/20130578 (Accessed: 27-01-2019 05:23 UTC)
[xlvi] 124 NW 221 (1910).
[xlvii] 124 NW 221 (1910).
[xlviii] John Gardner, Wrongs and Faults, The Review of Metaphysics, Vol. 59, No. 1 (Sep., 2005), pp. 95-132 https://www.jstor.org/stable/20130578 (Accessed: 27-01-2019 05:23 UTC)
[xlix] John Garner, Wrongs and Faults
[l] John Garner, Wrongs and faults
[li] Carroll Samuel Daniels, Measure of Damages in Personal Injury Cases, 7 U. Miami L. Rev. 171 (1953) Available at: http://repository.law.miami.edu/umlr/vol7/iss2/.
[lii] Michael I. Krauss, ‘Pain And Suffering’ And The Rule Of Law: Why Caps Are Needed (originally posted on April 17, 2014), Available at: https://www.forbes.com/sites/michaelkrauss/2014/04/17/pain-and-suffering-and-the-rule-of-law-why-caps-are-needed/#2dcc6864799c (Retrieved October 10, 2018).
[liii] Chisholm, Roderick M. “Sentences about Believing.” Proceedings of the Aristotelian Society, New Series, 56 (1955): 125-48. http://www.jstor.org/stable/4544560
[liv] Cuevas v. Contra Costa County, 11 Cal.App.5th 163 (2017).
[lv] Cuevas at 182.
[lvi] Id. at 179.
[lvii] Reasonable value also reflects the amount in payment expected by providers when they offer their goods or services in the marketplace.
[lviii] NAIC Malpractice Claims Final Compilation Medical Malpractice Closed Claims 1975 – 1978. https://www.naic.org/documents/prod_serv_special_med_lb.pdf (Last Visited 3-7-2019)