Ted Frank vs. Peter Nordberg on med-mal

Over at Point of Law, there’s a new Featured Discussion on medical malpractice: our own Ted Frank expands on his theory that it might be a good idea for doctors to benefit from something akin to the “business judgment rule”, by which courts refrain from second-guessing many decisions of corporate directors and officers in shareholder litigation. Ably representing the opposite point of view is Peter Nordberg, whose Daubert on the Web and Blog 702 cover scientific evidence issues in the courts with unrivaled depth.


  • Ted Frank’s comments are terrific. The Mal-Med problem comes mainly from idiotic decisions when passions overwhelm reason. Caps only mitigate the problem; they act as aspirin to the flu.

    The really bad mistakes in our courts happen when we make 12 average citizens engineers, doctors, or economists.

    Maybe a thousand monkeys in a thousand years will produce Hamlet by chance, but there is no way that 12 average joes can master any of the learned disiplines during a trial.

    The failure of Enron resulted from a dynamic instability. Mr. Fastaw got caught by the dramatic drop in value of installed fiber. The relativly small sin on his part caused the run on the bank that did in the firm. Mr. Lay’s conduct was inconsequential. I doubt if 1 in 100 people can comprehend the dynamic nature of the problem. Mr. Lay’s trial differed not a bit from throwing the suspected witch into the river.

  • William Nuesslein,

    Having actually paid attention to the Enron situation, I can tell you with some certainty that your description of it is so amazingly wrong as to b either humorous or enraging.

    Lay and Fastaw were basically transferring company assets to their own pockets. They got CAUGHT because of the more dramatic fall than they anticipated, but the level of fiduciary misconduct on their part was truly staggering.

    Now, that’s not necessarily to say that was they did was outright and obviously illegal (which might be what you are talking about), as the laws govrning such are very complex and ridiculously hard to follow, at times even for those who make a good-faith effort to do so; I’m only saying that was they did was quite clearly unethical and completely equivalent to theft, even if the legal issues are stupidly hard to figure out.