I agree with Ted Olsen that contracting damages would be best, if the contracts were honored. Failing that, bad outcome insurance would be purchased by the patient, not the doctor. The patient would best know how much money will make them whole, and this would be resolved before the care was provided. This would allow underwriting to make the premium correspond to the risk. A policy against trisomy 21 in a 21 year old woman might cost $500 for a million dollars of coverage. A 45 year old might pay a hundred times that.

With respect to the sympathy of juries, tort reformers seem to always think that huge verdicts are the result of juror sympathy to the plaintiff (rather than good evidence of liability and damages).

In California, where Ritter’s malpractice trial occurred, jurors are given jury instructions that sympathy for the plaintiff cannot be used as a basis of a verdict in the plaintiff’s favor. While it is true that jurors do not always adhere to jury instructions–many times to the detriment of plaintiffs–in my experience jurors do a very good and business-like job excluding sympathy from their decision making.

Seems like they did in this case, too.

The real problems behind malpractice suits are: 1) a large number are baseless; 2) they drive up the cost of medical care and 3) they require juries to evaluate matters beyond normal expertise. The last point is likely the most critical. It’s what causes the whole process to be whimsical.

The judicial bias most endemic to our legal system is one _toward attorneys_. This is only natural, given that nearly all judges _are_ attorneys. Generally speaking, judges are too reluctant to dismiss suits, and far too unwilling to sanction attorneys.

Attorneys are explicitly trained as _advocates_ and usually have little or no training in epistemology. They do not really know how to evaluate competing claims. As jurists, we ask them to be impartial triers of fact, even though all of their training and legal experience requires the opposite of impartiality.

In other words, though it is not intuitive, I believe lawyers make lousy judges.

I know that in the real world it will never happen, but I think getting the lawyers out of the judiciary is the single most effective reform we could ever enact.

We need to move towards objective law, not towards total subjectivism and anarchy.

In fact, if everyone said that, then they’d have to actually keep any potential jurors who believed in jury nullification. They otherwise would not be able to fill juries. Finally we could get justice instead of the law.