The Deterrent Effect of Tort Law

A recent study was published by Northwestern University analyzing the deterrent effect of tort law, with a focus on medical malpractice reform measures in various states. The effect of this research can be viewed with a wider lens to show the deterrent effect of tort law in all areas where people can be injured due to the carelessness of others.  In short, limiting an injured person’s recovery with caps on damages makes us all less safe and reduces incentives to act safely.

In the article, they examined whether caps on non-economic damages in medical malpractice cases affected in-hospital patient safety. Under U.S. civil law, recoverable damages are divided into three categories: economic, noneconomic, and punitive. Economic damages consist of out-of-pocket expenses such as medical expenses and lost earnings, while noneconomic damages, often called pain and suffering and loss of a normal life (or disability), compensate for noneconomic harm. Punitive damages are less common in civil cases.  In this study, the researchers used patient safety indicators – measures of adverse events—as proxies for safety.  They found that patient safety gradually worsened after that state adopted caps on damage recoveries.  With less of a financial incentive to act safely, patient safety declined.  The statistics backed this up.  They looked at a large enough sample group to give their study statistical strength.

They noted that their study was the first, for medical malpractice and for personal injury liability generally, to find strong evidence that a reduction in liability risk leads to a reduction in safety. The broad rise in adverse events is consistent with general deterrence, in which lower liability risk leads hospitals to invest less in safety and physicians to be less careful in general.

Bottom Line – states must be cautious about relaxing tort liability without providing a substitute source of incentives.  If you have unfortunately been injured, you will want to be compensated for the full and fair value of your injuries, without generic limits on your recovery decided by legislators.  This applies to motor vehicle crashes, premises liability and other types of cases. If you have been injured and have questions, give us a call at O’Brien Law LLC and we will take the time to answer your questions, and to get you the best recovery possible for all of your harms and losses.