Theodore Eisenberg, ‘The Empirical Effects of Tort Reform’

Abstract:
Tort reforms enacted in response to asserted crises date back to the 1970s and have emphasized the highly visible areas of punitive damages, medical malpractice, and products liability. Little evidence exists that reform of punitive damages affected the ratio between punitive and compensatory damages. This is consistent with the absence of evidence that punitive damages were ever out of control and in need of reform. Evidence of the effect of tort reform in the medical malpractice field is mixed. Caps on non-economic damages have reduced costs, thereby likely decreasing pressure on hospitals to improve care. Consistent evidence of effects on physician behavior and physician supply has not emerged. Tort reform has rarely sought to address the well-established problem of widespread harm caused by poor quality care. Products liability plaintiffs have had decreasing success over time. While one cannot rule out specific statutory reforms as achieving more favorable results for defendants, the national scope of plaintiffs’ declining success supports an explanation based on the social construction of knowledge by well-funded industry groups.

Eisenberg, Theodore, The Empirical Effects of Tort Reform (April 1, 2012). Research Handbook on the Economics of Torts, Forthcoming.

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