This chapter argues that the best solution for dealing with the high cost of administrating pain-and-suffering damages and the alleged variation in horizontal quality is to reduce the cost of administration and increasing uniformity, rather than limiting plaintiffs’ recoveries. The best way to accomplish this is by simplifying ways to estimate pain-and-suffering losses. The chapter surveys a number of solutions discussed in the literature on how to simplify the estimation of pain-and-suffering damages to cut administrative costs. The goal is to demonstrate the feasibility of the task of estimating the loss more than to recommend any specific path to it.
Ronen Avraham and Max M. Schanzenbach
This chapter assesses theory and evidence on the efficacy of medical malpractice liability and limitations to it in improving healthcare outcomes, and identifies unresolved issues that merit further attention from scholars. First, it explores the theoretical and legal background on medical malpractice. It then turns to the available evidence by focusing on three basic areas of study: the impact of malpractice limitations on payouts and litigation, the effect of malpractice limitations on overall healthcare costs, and the effect of malpractice on two major cost drivers in the healthcare system: cardiac and obstetrics practice. It argues that limitations on liability did not and likely cannot significantly reduce healthcare costs. Finally, the chapter discusses new and important trends in the literature regarding reforms to standards of care and the role of clinical practice guidelines and communication and disclosure programs.