Medical roundup

  • Radiologist Saurabh Jha had me on his popular podcast a while back to discuss the history of malpractice law. Now he’s written a substantial piece (link to article, gated) on my book The Litigation Explosion (1991) for the Journal of the American College of Radiology which has in turn touched off a discussion on professional Twitter;
  • Certificate-of-need (CON) laws in 35 states allow incumbent firms to raise legal objections to entry by new competitors. Bad idea generally, and especially when the service involved is ambulances [John Stossel; Cato Daily Podcast with Caleb Brown and Larry Salzman of the Pacific Legal Foundation, which is suing to challenge Kentucky law]
  • Cato’s Robert A. Levy discusses some of the common law background of tort and contract, including medical misadventure [The Bob Harden Show, radio]
  • Trial lawyers trying yet again to lift California MICRA limits on medical malpractice recoveries [AP/KTLA via TortsProf] “Pennsylvania high court tosses seven-year medical malpractice limit” [Harris Meyer, Modern HealthCare via TortsProf]
  • Politicized social justice curriculum reaches med school [AnneMarie Schieber, Martin Center]
  • No repeal of Feres doctrine, but administrative claim fund could bypass: “Military medical malpractice victims could see payouts from Defense Department under new compromise” [Leo Shane III, Military Times]


  • Re: CON. How is giving a local business veto power over a new entrant remotely constitutional?

    • This is a state law issue. For the most part, the state constitutions are not set up with enumerated powers like the US constitution imposes on the Federal government.

      Unless there is something in either the US Constitution’s BOR or the state constitution that would explicitly prohibit it, the states have the authority to do it.

    • 10th Amendment.

  • California proposition against MICRA medical malpractice limits–

    The KTLA report focuses on inflation-adjusting the 1975 $250,000 cap on non-economic medical malpractice damage awards. The proposed catch-up to $1,200,000 (modern purchasing power of $250,000 in 1975) may be too much, but inflation-adjustment itself appeals to fair-minded voters. Missed by KTLA, however, were provisions blowing away the cap entirely if the jury rules the damages “catastrophic” [Section 4 (d)] (and prompting the jury to understand that a “catastrophic” finding is the only way to make higher damages stick) [Section 4 (e)] ; also elimination of limits on attorney fees [Section 4 (f)].
    Fairness for Injured Patients Act

  • On the medical school thing: you can tell how lopsided this is politically by asking how likely it is that you could get approval for a class touting the healing power of prayer or pointing out that children in intact families are healthier, or a course examining the downside of early hormonal intervention for supposedly trans kids. Gun control is absolutely not a medical issue and docs have no unique insight into gun violence.

    Cert of need is used to stop new medical facilities quite often, in spite of how people complain about waits or high prices. It is purely there to prop up prices. It is also used to stop new restaurants, moving companies, etc. The idea that a gov office can tell what is the “proper” number of CT machines in town or taco joints is beyond ludicrous. In Britain as the industrial revolution got rolling there were laws protecting almost every business from competition (which these businesses and guilds had paid for via fees to the crown). The only reason new industry was not prevented was that the gov was incompetent, it was often hard to tell what the new industry was competing with, and it all happened too fast.

  • Military Feres doctrine–

    Administrative procedure to hear claims for medical malpractice is a reasonable compromise that this veteran has favored for decades.