Martin at Health Policy and Research has exactly the right take on malpractice trial optimality:

[T]he data on medical malpractice is incredibly murky. It is not at all clear that the sensitivity and specificity of malpractice lawsuits is where it should be, but that is a very different question than if, from a policy perspective, we should put caps on malpractice awards.

The data probably are murky, but they’re not that bad. And I am not sure how “incredibly murky” data support a conclusion that “something must be done!“, as the tort “reformers” keep insisting. Normally, inability to produce convincing evidence is considered tantamount to admission that your position is insupportable - but somehow, the burden is always on the other side to disprove any conservative claim, no matter how groundless.

At any rate, what impresses me about Martin’s post is that, even while seemingly critical of the tort system, he manages to identify the correct decision-making criteria: the sensitivity and specificity of malpractice trials (i.e., the likelihood of “true positives” - correct awards for well-grounded accusations of malpractice - and the likelihood of “true negatives” - correct rejections of false malpractice claims - respectively) as means of adjudicating claims of wrongdoing. As with any test or evaluative procedure, there will be a certain percentage of Type I (false positive) and Type II (false negative) errors. The question is not whether malpractice trials are a perfect way of adjudicating accusations, but whether they are better than any available alternative. (A recent study, often cited in support of the call for “tort reform”, actually suggests that the sensitivity of malpractice trials is quite high.) There is also the question whether whatever level of benefits (if any) we might derive from abandoning or changing the tort system is worth eviscerating the Constitutional role of civil trials in settling disputes of this type.

Whatever we decide to do, we must evaluate the tort system as we would any other method of decision-making and problem-solving. Medical science, in particular, gives us the tools for evaluation of medical testing procedures - which malpractice trials, in a certain way, are.  What we want for the malpractice adjudication system (aside from the question of the method of actually setting compensation in proven cases) is what we want from any medical test: the highest possible sensitivity and specificity commensurate with available technology and resources. Viewed in that light, the mere fact that awards are made - virtually the only evidence typically offered against the current system - has no significance. The burden not only remains on “reformers” to prove their case - they have not essayed that burden at all so far.