I always wondered about the deterrent effect of medical malpractice laws. In other words, if you pass laws which limit responsibility of tortfeasors do you embolden them to commit torts? Does the fact that they have limited responsibility make people less careful?
This is often discussed in the medical malpractice area. Pro-tort reform entities seek to cap damages. Groups who advocate for victims rights, like the Illinois Trial Lawyers Association and the American Association for Justice, cite studies from people like Tom Baker, author of the Medical Malpractice Myth,which indicate that the great majority of people who were injured by medical providers’ negligence do not file suit. They discuss the huge numbers of medical errors compared with the paucity of actual suits. (Tom Baker was a guest on my radio show, Let’s Talk Law. Also, I should probably mention I am a member of American Association for Justice and on the Board of Managers for the Illinois Trial Lawyers Association).
Zenon Zabinski and Benard S. Black have written a paper about this issue. The papers entitled “The Deterrent Effect of Tort Law: Evidence from Medical Malpractice Reform.” The paper analyzes cases from states that enacted damage caps for medical malpractice claims. Those states are Florida, Georgia, Illinois, South Carolina, and Texas. The study notes that in Illinois and Georgia invalidated the caps. However, Zabinski and Black studied information that predated the invalidation of the caps so the information should not effective the study.