Empirical Health Law Scholarship: The State of the Field

The last three decades have seen the blossoming of the fields of health law and empirical legal studies and their intersection--empirical scholarship in health law and policy. Researchers in legal academia and other settings have conducted hundreds of studies using data to estimate the effects of health law on accident rates, health outcomes, health care utilization, and costs, as well as other outcome variables. Yet the emerging field of empirical health law faces significant challenges--practical, methodological, and political. The purpose of this Article is to survey the current state of the field by describing commonly used methods, analyzing enabling and inhibiting factors in the production and uptake of this type of research by policymakers, and suggesting ways to increase the production and impact of empirical health law studies. In some areas of inquiry, high-quality research has been conducted, and the findings have been successfully imported into policy debates and used to inform evidence-based lawmaking. In other areas, the level of rigor has been uneven, and the best evidence has not translated effectively into sound policy. Despite challenges and historical shortcomings, empirical health law studies can and should have a substantial impact on regulations designed to improve public safety, increase both access to and quality of health care, and foster technological innovation

Common-Law Disclosure Duties and the Sin of Omission: Testing the Meta-Theories

This Article represents the first attempt to study empirically the factors that cause courts to impose disclosure duties on bargaining parties in some circumstances, but not in others. We analyze data coded from 466 decisions spanning a wide array of jurisdictions and covering over two hundred years. The results are mixed. In some instances our data support the conventional wisdom relating to common-law disclosure duties. For example, we find that courts are more likely to require the disclosure of latent, as opposed to patent, defects and are more likely to require disclosure when the parties are in a fiduciary or confidential relationship. In other instances, our results cast doubt on much of the conventional wisdom regarding the law of fraudulent silence. First, although it is generally understood that courts have become more likely to impose disclosure duties over time, we find that courts actually have become less likely over time to impose duties to disclose. Second, and perhaps most importantly, we find that courts are no more likely to impose disclosure duties when the information is casually acquired as opposed to deliberately acquired, and that unequal access to information by the contracting parties is not a significant factor that drives courts to find a duty to disclose. We do find, however, that when both factors are present courts are significantly more likely to force disclosure

The willingness to pay-willingness to accept gap, the "endowment effect," subject misconceptions, and experimental procedures for eliciting valuations

We conduct experiments to explore the possibility that subject misconceptions, as opposed to a particular theory of preferences referred to as the “endowment effect,” account for reported gaps between willingness to pay (“WTP”) and willingness to accept (“WTA”). The literature reveals two important facts. First, there is no consensus regarding the nature or robustness of WTP-WTA gaps. Second, while experimenters are careful to control for subject misconceptions, there is no consensus about the fundamental properties of misconceptions or how to avoid them. Instead, by implementing different types of experimental controls, experimenters have revealed notions of how misconceptions arise. Experimenters have applied these controls separately or in different combinations. Such controls include ensuring subject anonymity, using incentive-compatible elicitation mechanisms, and providing subjects with practice and training on the elicitation mechanism before employing it to measure valuations. The pattern of results reported in the literature suggests that the widely differing reports of WTP-WTA gaps could be due to an incomplete science regarding subject misconceptions. We implement a “revealed theory” methodology to compensate for the lack of a theory of misconceptions. Theories implicit in experimental procedures found in the literature are at the heart of our experimental design. Thus, our approach to addressing subject misconceptions reflects an attempt to control simultaneously for all dimensions of concern over possible subject misconceptions found in the literature. To this end, our procedures modify the Becker-DeGroot-Marschak mechanism used in previous studies to elicit values. In addition, our procedures supplement commonly used procedures by providing extensive training on the elicitation mechanism before subjects provide WTP and WTA responses. Experiments were conducted using both lotteries and mugs, goods frequently used in endowment effect experiments. Using the modified procedures, we observe no gap between WTA and WTP. Therefore, our results call into question the interpretation of observed gaps as evidence of loss aversion or prospect theory. Further evidence is required before convincing interpretations of observed gaps can be advanced

Exchange Asymmetries Incorrectly Interpreted as Evidence of Endowment Effect Theory and Prospect Theory?

Systematic asymmetries in exchange behavior have been widely interpreted as support for "endowment effect theory," an application of prospect theory positing that loss aversion and utility function kinks set by entitlements explain observed asymmetries. We experimentally test an alternative explanation, namely, that asymmetries are explained by classical preference theories finding influence through the experimental procedures typically used. Contrary to the predictions of endowment effect theory, we observe no asymmetries when we modify procedures to remove the influence of classical preference theories. When we return to traditional-type procedures, however, the asymmetries reappear. The results support explanations based in classical preference theories and reject endowment effect theory

Medical Malpractice Liability Crisis or Patient Compensation Crisis?

Tort reform has been a hot topic among those interested in assessing whether and how well the tort system aids injured plaintiffs in achieving civil justice. The debate has been especially heated when it comes to medical malpractice liability. Until recently, rhetoric about the liability system and its relationship to insurance markets and physician supply dominated tort reform debates. While claims made by both proponents and opponents can seem intuitive, they are often unsubstantiated. In recent years, however, academics and others have acquired or created datasets to perform analyses to enhance our understanding of the relationship between the tort system and insurance markets. Such studies have helped shift tort reform debates away from rhetoric and toward inferences drawn from facts. While our ability to assess rhetorical claims has been limited given lack of access to private settlement data, recently discovered datasets collected by state insurance departments have provided a window into settlement outcomes, along with a variety of other features of the liability system and insurance markets. Instead of supporting the claims made by those who blame medical malpractice liability system crises for rising insurance premiums, recent results using closed claims data suggest we might instead be facing a potentially worsening patient compensation crisis

Empirical Health Law Scholarship: The State of the Field

The last three decades have seen the blossoming of the fields of health law and empirical legal studies and their intersection - empirical scholarship in health law and policy. Researchers in legal academia and other settings have conducted hundreds of studies using data to estimate the effects of health law on accident rates, health outcomes, health care utilization, and costs, as well as other outcome variables. Yet the emerging field of empirical health law faces significant challenges: practical, methodological, and political. The purpose of this Article is to survey the current state of the field by describing commonly used methods, analyzing enabling and inhibiting factors in the production and uptake of this type of research by policymakers, and suggesting ways to increase the production and impact of empirical health law studies. In some areas of inquiry, high-quality research has been conducted, and the findings have been successfully imported into policy debates and used to inform evidence-based lawmaking. In other areas, the level of rigor has been uneven, and the best evidence has not translated effectively into sound policy. Despite challenges and historical shortcomings, empirical health law studies can and should have a substantial impact on regulations designed to improve public safety, increase both access to and quality of health care, and foster technological innovation

What Explains Observed Reluctance to Trade? A Comprehensive Literature Review

Valuation gaps and exchange asymmetries are among the most widely studied phenomena in the field of behavioral economics. The purpose of this chapter is to present the current state of the social science literature related to observed reluctance to trade. Numerous theories have been proposed and only a few might be safe to rule out based on the evidence to date. The chapter begins by describing the standard model of preferences, which generally assumes that valuation is independent of ownership status, and then catalogs early findings that seem to suggest that ownership status influences valuation. Early research tested various potential explanations for observed reluctance to trade, and the results did not point to any one theory. Despite this, the literature gravitated toward a single theory — endowment theory, which assumes that preferences are reference-dependent and that individuals are averse to losses. With endowment theory on the rise, some went to work to investigate the conditions that might trigger loss aversion and those that might reduce its effects. Since the early 1990s, a number of alternative theories have been developed and tested by both economists and psychologists including substitution theory, expectation theory, preference uncertainty, mere-ownership theory, enhancement theory, subject misconceptions, and regret avoidance. The chapter walks through each proposed theory, cataloging the evidence for and against. While some theories have garnered more support from the data than others, no single theory yet deserves the title of leading theory. In addition, the phenomenon itself has proved too unstable to warrant general claims that valuations depend on ownership (or expectations over ownership) or that individuals are generally reluctant to trade. Given the current state of the literature, to make such claims is to misrepresent the full set of results. As this chapter makes clear, much more work is required to develop a theory or set of theories worthy of designation as the leading theory

Turning from Damage Caps to Information Disclosure: An Alternative to Tort Reform

With the 2004 U.S. presidential election close at hand, George W. Bush and his Administration resurrected a previously-killed federal proposal to cap medical malpractice damage awards. The Bush Administration once again claimed that the United States is experiencing a medical malpractice insurance crisis and that frivolous medical malpractice lawsuits are the cause of this crisis. According to the current Administration, large jury awards lead to significant increases in medical malpractice insurance premiums, driving physicians from the practice of medicine. Indeed, an array of policymakers continue to argue that damage caps will quell sharply increasing medical malpractice premiums, despite the fact that empirical evidence regarding the impact of damage caps on premiums is inconclusive. This Case Study argues that imposing statutory caps on medical malpractice damages is not an effective method of remedying the medical malpractice insurance crisis; therefore, policymakers should consider alternatives to damage caps. In particular, evidence suggests that implementing mandatory disclosure of the contract terms between managed care organization (MCOs) and physicians for the provision of services to enrollees reduces medical malpractice insurance premiums