Tort law serves a lot of purposes tort reformers don’t recognize, though Robert Bork might have changed his mind.

The law tends to be rational, though the rationale behind it is not always apparent. But when you see people screaming about irrational laws, they’re often failing to see, if not ignoring, what the laws do accomplish.

You’ll hear again and again in connection with proposals to reform our system of health insurance that the real way to cut medical costs is to reform our tort system so that doctors don’t practice excessively expensive “defensive medicine.” Don’t believe it. I’m not saying that our malpractice system is perfect, but merely cutting back on malpractice cases and recoveries because of their impact on the practice of medicine ignores two important consequences of the malpractice system that we better be sure are provided in other ways before we significantly cut it back.

First, the malpractice system maintains the high quality of health care we do have. My dentist, who is German, told me she hates practicing dental surgery in Germany because the standard of care is so low. She’s always afraid the anaesthesiologists will kill the patients. In contrast, she explains that the standard of care is so good here precisely because of the fear of malpractice liability.

Second, judges and juries in some jurisdictions likely do err in favor of patients in finding doctors at fault. Why? Because our health insurance system is so inadequate and, regardless of the doctor’s wrongdoing, a patient who suffers a bad outcome from a medical procedure is going to need money to take care of the bad outcome. If it isn’t going to come from health insurance, why not from the doctor’s malpractice carrier?

The second problem would be better taken care of by instituting a no-fault compensation scheme for people who suffer bad outcomes from medical procedures. But doctors have always, for reasons I do not fathom, resisted such a system, while at the same time they cry, understandably, about the blame game played in malpractice cases.

There have to be better ways than the malpractice system to maintain our nation’s high standard of medical care. But until we’ve devised such a system, we ought to be cautious about dismantling the system that currently maintains that high standard.

The funny thing is that no one likes a personal injury lawyer until they need one. Robert Bork, of course, is a notorious conservative critic of our legal system who is often portrayed as a victim as a result of the rejection of his nomination by Ronald Reagan to the Supreme Court. Bork’s critique of the legal system has included an attack on the tort system, calling it, as Bloomberg News reported last month, an irrational and unpredictable process that subjects businesses to the kind of predation practiced by pirates:

In a 1995 opinion piece published in the Washington Times, Bork and Theodore Olson, who later became a top Justice Department official, criticized what they called the “expensive, capricious and unpredictable” civil justice system in the U.S.

“Today’s merchant enters the marketplace with trepidation — anticipating from the civil justice system the treatment that his ancestors experienced with the Barbary pirates,” they wrote.

But Bork recently sued the Yale Club of New York City, “claiming he tripped and fell because of the club’s negligence as he ascended a dais to give a speech.” His amended complaint alleges that “[w]hen it was his turn to deliver” a speech at the Yale Club, he “approached the dais. Because of the unreasonable height of the dais, without stairs or a handrail, Mr. Bork fell backwards as he attempted to mount the dais, striking his left leg on the side of the dais and striking his head on a heat register.” Among other defensess asserted by the Yale Club in its answer are that the risks of mounting the dais were “open and obvious” and that Bork has already been compensated (no doubt through his health insurance, which I bet is as good as it comes) for some or all of his economic loss.

Bork isn’t the first “hypocrite of tort reform,” nor will he be the last. But next time you know someone who’s been badly injured, you might want to keep in mind the ways he or she might get compensated for the costs arising from the injury and the ways the law discourages the conditions that caused the injury.

Fix the law, but don’t forget what the law has already tried to fix.

Opinions about law tend to focus on its defects, and there are plenty of those.  What too many of those opinions ignore, however, is that law is rarely arbitrary or one-sided.  There are imperfections, but those imperfections are flaws in an effort to address real problems.  To fix the flaws in existing law without attending to the problems that law addresses is to trade one set of problems for another, often bigger, one.

The U.S. legal system is an immensely complex product of decisions made in courts, legislatures, and administrative agencies at the federal level as well as the state and local level.  When one considers the monumental number of individual decisions that make up the workings of those tens of thousands of jurisdictions and the fact that law persists over time until it is changed, it is plain that the “law” is the product of a massive collective wisdom.

That is not to say the system is perfect — it is far from perfect, and its complexity is in no small part directed at perpetually refining the defects that perpetually appear as new problems arise in new contexts that include new ways of looking at things.  Not only do we continually face new facts, but what we think and feel about those facts always changes.  As Nicholas Kristoff points out this morning, for example, new industrial farming methods and new ideas about the morality of ignoring the suffering of animals is has produced “a broad push in Europe and America alike to grant increasing legal protections to animals.”

But my point today isn’t about new law — it’s about the efforts to fix existing law.  If one is going to do so in an effective way, it is not enough to identify a problem and eliminate it.  One must also figure out what the existing law is trying to do.  Medical malpractice is a lottery, giving big awards to certain injured plaintiffs while leaving most uncompensated.  It also does a less than optimal job at distinguishing between negligent doctors and non-negligent doctors who, after all, practice a profession in which perfect performance will not necessarily lead to a good outcome.  It also likely increases the costs of health care by forcing doctors to practice “defensive medicine.”

But if one produces a solution that merely solves these problems without recognizing the problems the system is trying to address, one is merely serving one set of interests.

There are two major reasons the medical malpractice system operates the way it does.  Patients suffer major harm from medical procedures, and they can’t afford to pay for the care that harm requires.  In addition, the threat of liability has made the standard of care in U.S. health care the highest in the world.  (It’s an interesting instance of selective vision, I think, that political opposition to medical malpractice and to universal health care come from the same political sector and the opposition to universal health care is based on a promotion of the superior quality of U.S. health care, as if that quality has nothing to do with the incentives imposed by the threat of medical malpractice.)

Thus, I wrote recently in connection with Philip K. Howard’s Life Without Lawyers: Liberating Americans from Too Much Law, that if “doctors really want to reduce malpractice problems in a way that will satisfy everyone . . . [they should] create a patients’ compensation law that provides relief to patients injured by adverse medical outcomes.”  I am gratified to realize I am not alone in my thinking.  Writing today in the New York Times in response to Mr. Howard’s one-sided solution to the problems of the malpractice system, Clifford Allo points out that the biggest problem — the one the existing system is an imperfect remedy for and that Mr. Howard ignores — is that patients who suffer hard resulting from medical procedures (a risk we all face all the time no matter how perfect our doctors might be) are not provided the financial means to live with that harm:

The biggest reason for bringing the most expensive malpractice claims – for example, adverse incidents at birth – is to find some source to pay for long-term care. A single-payer system would provide that care without threatening any doctor’s personal wealth.

We use the courts to allocate yesterday’s fault so that tomorrow’s bills may be paid. If tomorrow’s care were assured, care review could focus on quality assurance rather than on fault. We need to overcome the ideology that prefers private profit to universal security.

And Jerry Frankel, a doctor, writes that Sweden already has a system like the one I described:

The problem with the proposal advocated by Philip K. Howard is that it’s very difficult in most injuries to discern negligence from an unfortunate complication or complications.

Honest, objective medical experts often can’t agree about what is the standard of care, much less whether a complication was negligence or not.

In Scandinavia, anyone who suffers a major medical injury is compensated by a no-fault system where the compensation has been set based on the type and severity of injury. This eliminates our lottery system, where few patients are compensated at all.

Physician report cards are maintained to protect the public from bad doctors, but no-fault liability payments are not part of doctors’ evaluations.

Patients in this system have the ability to opt out and sue, but if they lose in court, they lose their no-fault option. Few, if any, opt out.

Hard cases make GOOD law.

The U.S. Supreme Court ruled today that Wyeth is liable to Diana Levine (pdf) for $7 million, the amount (reduced from $7.4 million by the judge) that a Vermont jury had awarded her (and that the Vermont Supreme Court had affirmed) based on the jury’s conclusion that Wyeth had been negligent under Vermont tort law in failing to provide a strong enough warning against intravenous injection of the drug Phenergan. As a result of being injected with Phenergan, an anti-nausea drug manufactured by Wyeth, Levine’s right arm had to be amputated. Wyeth’s warning warning regarding the safety of injecting Phenergan stated:

When administering any irritant drug intravenously, it is usually preferable to inject it through the tubing of an intravenous infusion set that is known to be functioning satisfactorily.

As Justice Stevens observed in his majority opinion, “The evidence presented during the 5-day jury trial showed that the risk of intra-arterial injection . . . can be almost entirely eliminated” by administering the drug by IV rather than by injection. The jury concluded “Wyeth was negligent, that Phenergan was a defective product as a result of inadequate warnings and instructions, and that no intervening cause had brokenthe causal connection between the product defects and the plaintiff’s injury.”

The principal argument Wyeth made is that since the warnings it provided along with the drug were in compliance with the FDA’s requirements, the Court should have concluded that there can be no enforceable state law that requires stricter requirements. The argument would mean that as long as Wyeth had satisfied the FDA it had done everything right, no one could sue Wyeth, not even if, as the jury in Levine’s case concluded, Wyeth had been negligent and that negligence had caused the loss of Levine’s arm. In legalese, this argument is that the Federal regulation of these warnings “preempts” any state regulations on the same subject.

Whether federal law preempts state law turns on whether, in the Court’s opinion, Congress intended the federal law to do so. As Justice Stevens explains, there is good reason to believe Congress intended state tort law to supplement FDA regulation of drug safety, and there is very good reason that should be the case. Over the decades Congress has enacted laws governing the FDA, it has made clear its understanding federal regulation of drugs has needs to be supplemented by state tort law. Nevertheless, Congress has sometimes intended certain FDA regulations to preempt state law — on those occasions Congress expressly so stated in the legislation regarding those regulations. Thus, it is reasonable to conclude that congressional silence on preemption in the legislation at issue in Levine’s case indicates no intent to preempt.

Moreover, it would be foolish to shift exclusive responsibility for all responsibility for drug safety to the FDA. The FDA does not have the resources to make all determinations necessary to maintain drug safety. The drug makers do. Without state tort liability, the drug companies would be absolved of any responsibility for the safety of drug labeling. Thus, Stevens points out that

Wyeth suggests that the FDA, rather than the manufacturer, bears primary responsibility for drug labeling. Yet through many amendments to the FDCA and to FDA regulations, it has remained a central premise of federal drug regulation that the manufacturer bears responsibility for the content of its label at all times.

Stevens even points out that the FDA has traditionally been in favor of having state law complement their own regulation of drug safety:

The FDA traditionally regarded state law as a complementary form of drug regulation. The FDA has limited resources to monitor the 11,000 drugs on the market, and manufacturers have superior access to information about their drugs, especially in the postmarketing phase as new risks emerge.

The dissenting opinion, written by Justice Alito on behalf of himself, Chief Justice Roberts, and Justice Scalia, opened with a variation on one of my most hated legal clichés — “Hard cases make bad law.” Alito’s cute variation? “This case illustrates that tragic facts make bad law.”

Why do I hate this sentiment? As I’ve written before, the ultimate point of our justice system is to do justice. The cliché that “hard cases make bad law” expresses the idea that one harms the law if one goes out of one’s way to interpret it in favor of someone you know should, if real justice rather than law applied, prevail. The jury concluded that Wyeth should have given a stronger warning against injection of Phenergan and that it’s failure to do so caused Levine to lose her arm. Those determinations could not have been overturned by the Supreme Court — they are the type of determinations left to the jury who saw the evidence. So, in the absence of explicit Congressional statements that the statute is intended to preempt state law and thus shield Wyeth from any liability, justice would seem to require  Wyeth to be responsible for the harm its negligence caused to Levine.

Since the dissenters concluded the law requires otherwise, they believe, despite their stated sympathy for Levine’s “tragedy,” that the Court’s hands have been tied and, sadly, it must find that Levine is not entitled to sue Wyeth.

Typically, as in this case, such reasoning rejects perfectly reasonable reasons to find that the “tragic victim” should prevail. Thus, it seems, typically when a court hauls out that old “hard cases” line, it is really not acting in the interests of either law or justice, but, rather in the service of a cause that remains largely hidden.

That cause, in this case, is the conservative campaign against state tort lawsuits (in the name of “tort reform”).

Why do we have such safe drugs? Such high standards in the quality of our medical care? Cars enormously safer now than just a couple of decades ago?

Because the people and organizations most responsible for that safety and most capable of maintaining it are held responsible if they don’t provide for that safety. Tort regulation isn’t perfect, but it’s a lot better than governmental regulation alone. (No regulation at all, of course, would lead to drugs we could have no confidence in.)

But Alito, Steven, and Scalia are clearly acting in the service of the interests that would get rid of state tort suits — in this case, the pharmaceutical industry. This case isn’t a result of the majority’s effort to make people happy for Levine; it’s a case that both does justice to her and is consistent with existing law and sound national policy that Stevens has persuasively explained. Alito isn’t sorry that Levine lost her arm. He’s sorry Wyeth can be sued for its negligence.

Why did I call Google a (former?) “white knight”?

I wrote yesterday that some fear Google’s decision to settle the lawsuit over the Google library project heralds a new era, one in which Google will not be the rich uncle fighting the fights over copyright that others, who cannot afford being engaged in protracted lawsuits, will be unable to fight. The point deserves some further observations.

First, those who represent wealthy corporate interests typically decry the fact that in the U.S. both the party who brings the lawsuit (the plaintiff) and the party who is sued (the defendant) bears its own litigation costs, win or lose. This rule (the American Rule) is in contrast to the English Rule. In the U.K., the party who loses a lawsuit pays the costs of the winner’s lawyers. As a result, there are fewer cases brought by plaintiffs without resources. Corporate interests that advocate for “tort reform” don’t want individuals suing corporations as often as they currently do for things like personal injury and employment discrimination. If plaintiffs had to pay the costs of the defendants’ attorneys in those lawsuits when the plaintiffs lost, far fewer plaintiffs would in fact sue.

But in the copyright arena in these internet days, it generally is wealthy corporate interests that are threatening to sue or suing individual defendants. Because many of these defendants cannot afford to pay for lawyers to fight these threats, they back down. As a result, there is what is called “copyright overclaiming” – that is, copyright holders claim rights they don’t have, threaten legal action (or send DMCA takedown notices), and get what they want even though they are not entitled to it. Sometimes copyright holders can get help (from, for example, the Electronic Frontier Foundation), but in 999 cases out of 1000 they’re left to their own devices, and it usually makes far more sense to back down then to fight. Why pay for a lawyer to fight an expensive lawsuit when, if you lose, you’ll have to pay the far more expensive legal costs incurred by your adversary too?

That’s why, if Fred von Lohman is right and Google is no longer going to fight copyright battles it thinks should be fought on the merits (and not only for short term business advantage), it would be a real loss; it is, in short, why I called Google a “white knight” in the title of yesterday’s post.