Saturday, July 23, 2005

Overblown Rhetoric Watch -- "Tort Reform" Edition

Like most people, we have a lot of political opinions. You don't know what most of them are, because we don't generally flog them here.

Not that we hesitate to state our views, if they relate in some discernible way to the general topic of this weblog (expert evidence). But we aren't primarily here to be rabble-rousers or controversialists, and so we generally leave unstated whatever opinions we may hold on subjects not related to this weblog's fairly narrow topical focus. Our readers do not know what we may think about gun control, affirmative action, abortion, Valerie Plame, the Patriot Act, North Korea's nuclear program, or the marginal tax rate. Readers might guess at our opinions about such things. But they might guess wrong.

Our reticence has not saved us, however, from being counted as part of a "ton of left-leaning blogs." That is how we now find ourselves characterized by Jacob Montgomery (as one of three cited examples) after our one-sentence post of 7/7/05 relating news of a study by the Center for Justice and Democracy on the relationship between medical malpractice premiums and payouts. (On the following day, our post ballooned to two sentences, when we updated it with a link to James R. Copland's extensive critique and rebuttal of the study at Point of Law -- a Manhattan Institute site.)

What this "ton of left-leaning blogs" did, according to Montgomery, is "feature" the study as "proof" that "malpractice insurance companies – not lawsuits – are the cause of skyrocketing medical malpractice insurance rates."

For the record, we do not recognize ourselves in this description. For one thing, we did not cite the study as "proof" of anything. We're pretty slow to make claims like that. For another, our post made no claims at all about anything's having caused a solitary thing.

But our original post can speak for itself. Here it is, in its entirety:
The New York Times reports on a new study by the Center for Justice and Democracy showing malpractice premiums rising 120% over the past five years while payouts were flat.
Our header for that post:

Another Study Casts Doubt on the Malpractice Liability "Crisis"
That header was worded carefully. As loyal readers know, empirical investigations have repeatedly called into question whether any substantial basis exists for claims that the recent explosion in malpractice premiums is primarily attributable to any corresponding jump in malpractice payouts. See, e.g., our posts of 2/22/05, 3/16/05, 3/23/05, and 6/4/05.

That doesn't end the inquiry, of course. One prominent justification for "reform" often touted by advocates of damage caps and similar measures is the suggestion that current spikes in malpractice insurance rates result entirely from some recent explosion in frivolous malpractice lawsuits that are extorting large payouts from physicians and their insurers. But that is not the only rationale that "tort reformers" have advanced. Meanwhile, as we have repeatedly attempted to notice (and as we have duly applauded "tort reform" advocates for noticing, when they do), multiple causes for fluctuations in malpractice rates are undoubtedly in play, and in the longer term, those causal factors undoubtedly include payouts as well as other factors. No single study, meanwhile, should be accepted as decisive, nor should any be read with an uncritical eye. There will be imperfections, or outright defects, in everybody's favorite studies. Some of those studies might also be vulnerable to the charge that they were undertaken by investigators with some stake or agenda.

That said, empirical investigations into the relationship between payouts and premiums do seem worthy of consideration in assessing whether the current premium crisis stems from any recent outburst of frivolous litigiousness from the plaintiffs' malpractice bar, as more than a few "tort reform" advocates have alleged. We personally believe that before any such claim becomes the basis for wholesale legal revolution (federalization of malpractice law, stringent caps on compensatory damages for even claimants having suffered crippling harm, special evidentiary rules, et cetera), the empirical foundations of the claim should be reasonably well-established. And we don't think that qualifies us as left-leaning. At most, we think it qualifies us as aspirational members of the reality-based community.

In sum, if somebody wants our actual opinion, we don't think any one study "proves" anything, or that the behavior of malpractice premiums can be explained by exclusive resort to any single cause. We do think that the changes proposed by advocates of "tort reform" are sufficiently radical that they should have the burden of empirical persuasion. And so when another study comes along that calls the empirical validity of one rationale for "reform" into question, we think it's worth reviewing.

As for being called "left-leaning," let us make clear why we're peeved. There would be no shame in being a left-leaning person. Nor is there any shame in authoring a left-leaning weblog. Some of our best friends are left-leaning. And ordinarily we might feel honored, to be mentioned in the same breath with anyone, of whatever political stripe, so well-known as the other "left-leaning" bloggers with whom Mr. Montgomery has passingly lumped us.

But we are not happy with falling victim to drive-by ideological pigeonholing, in which views we never stated are attributed to us, and then to our supposed political leanings, for no better apparent reason than the expository convenience of a commentator who wants to set up strawmen to knock down. If somebody wants to measure our actually stated views with his personal political yardstick, that's fine. It's a free country. But it is irritating to have it suggested that our views on this study are colored by some hypothesized political bias, when we haven't stated any very definite views on the study to begin with -- and certainly not the ones described.

Are we blowing Mr. Montgomery's reference out of all proportion? Maybe. But to us the reference seemed a little propagandistic, and sometimes the only way to fight propaganda is with a surfeit of dreary precision.


Anonymous writes ...

Best ... post ... ever.

The Comic Book Guy from The Simpsons

1:35 PM  

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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.