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How Other Countries Judge Malpractice

In a June 30, 2009 opinion piece in The Wall Street Journal, Richard Epstein, a professor of law at the University of Chicago, a senior...
July 6, 2009

In a June 30, 2009 opinion piece in The Wall Street Journal, Richard Epstein, a professor of law at the University of Chicago, a senior fellow at the Hoover Institution and a visiting professor at NYU Law School, asserts that the only effective approach to medical malpractice reform is setting a national limit on damages for pain and suffering, similar to the limits that have been enacted by more than 30 states. Most of these caps are between $250,000 and $500,000 and limiting damage claims is more effective than other reform provisions such as limits on contingency fees, shorter statute of limitations or using a defendant's proportionate share of the harm as a basis for tort exposure. Epstein reviews how other nation's deal with medical malpractice, approaches that have become more relevant now that the U.S. is considering the universal healthcare that is often found elsewhere.  Malpractice costs in the U.S. are high because of at least four distinctive procedural features: jury trials; the system of contingency fees; rules that require each side to bear its own costs; and extensive pretrial discovery outside the direct supervision of judges. Plaintiffs are less likely to pursue risky lawsuits in Canada, England, most of Europe and other nations where the loser pays the winner's legal costs. Epstein sees American judges as far more likely than judges in other countries to allow juries to decide whether honest mistakes are negligent. Damage awards for lost income and medical expenses in the U.S. also tend to be far higher than elsewhere, in part because other governments provide medical care through a nationalized system. Epstein calls for juries to be replaced with specialized commissions, similar to those used in France, that would help reduce litigation expenses and make the outcomes of cases more uniform across the nation.