On May 24, 2011, Professor Charles Silver testified before the Subcommittee on the Constitution of the House Judiciary Committee. The title of the hearing was “Can We Sue Our Way to Prosperity?: Litigation’s Effect on America’s Global Competitiveness.”
Silver discussed how civil justice mechanisms in the United States contribute to prosperity by protecting legal rights and enforcing legal obligations. To illustrate this point, he described how, in the 1980s, lawsuits against anesthesiologists led the American Society of Anesthesiologists to identify the causes of medical errors and to improve the administration of anesthesia during surgery. These improvements caused mortality rates to decline sharply. Patients experienced better outcomes and were more productive than they would have been had they been killed or injured by anesthesia-related mistakes. With fewer patients being harmed, both the frequency of lawsuits and anesthesiologists’ insurance premiums declined. Both patients and anesthesiologists are better off today because of malpractice lawsuits injured patients filed decades ago. This, Silver argued, is one example of the positive connection between lawsuits and prosperity.
Silver urged Subcommittee members to ask themselves why other health care providers should be afforded the protection of “tort reform” when they could follow the ASA’s lead and improve delivery systems instead. Medical errors are a threat to America’s prosperity, he explained, and insulating health-care providers from the civil justice system only contributes to the problem.
Silver also directed the Subcommittee’s attention to a body of scholarly research finding that countries with high rankings on the rule of law and strong commitments to civil liberties tend to grow more quickly than others. This literature also finds that countries with common law histories, like the United States, grow especially fast. Tort law is part of the common law tradition and enhances individuals’ security. Consequently, Silver argued, “legislation that renders tort law impotent, by watering down substantive legal standards, by imposing procedures that make lawsuits impracticable, or by undermining the independence of common law courts, threatens personal security. Such legislation may therefore be predicted to endanger prosperity too.”
Paul Hinton, vice president of NERA Economic Consulting, and John Beisner of Skadden, Arps, Slate, Meagher & Flom LLP, also testified at the hearing.
Silver holds the Roy W. and Eugenia C. McDonald Endowed Chair at the University of Texas School of Law, where he writes and teaches about civil procedure, professional responsibility and, increasingly, health-care law and policy.
The hearing was covered by the National Law Journal [article requires registration to access].
Contact: Kirston Fortune, UT Law Communications Office, 512-471-7330, firstname.lastname@example.org