Sunday, January 16, 2005

Judge Posner and Tort Reform

What is responsible for the high cost of health care in America? Of medical malpractice insurance? What would be the best way to rein in those costs? Damage caps? More restrictive rules on expert testimony?

There are different kinds of conservativism. In the current climate, Judge Posner's variety sounds refreshingly sane.

Update 1/19/05: Judge Posner argues that moving towards experience rating of medical malpractice premiums would be a more suitable reform than damage caps. Posts at Michigan Medical Malpractice and Point of Law suggest that Judge Posner has missed the boat, because the availability and price of malpractice insurance already vary as a function of physician claim history. We are not experts, by any means, on the premium structure for medical liability insurance, but from what we can see on the internet, we're experiencing cognitive dissonance. Some fair number of current commentators, across the ideological spectrum, appear to believe that medical malpractice insurance generally is not experience rated, although it is acknowledged that some insurers have recently moved in that direction. Is the truth that we're in a mixed or hybrid environment? If so, then it would seem unfair to chastise Judge Posner for arguing that moving to a more consistent and full-blown experience-rating system would be an improvement. There might be room to disagree with his argument, but the argument wouldn't rest on a false premise, as the critical posts have implied. It would be enlightening to see some hard information about the current regime.

Update 1/23/05: Judge Posner has now responded to comments on the experience-rating issue, saying he was "pleased to learn" that some insurers follow the practice and wondering aloud why others "do not."


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Fed. R. Evid. 702: If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise, if (1) the testimony is based upon sufficient facts or data, (2) the testimony is the product of reliable principles and methods, and (3) the witness has applied the principles and methods reliably to the facts of the case.