The WSJ’s Anonymous Source on Tort Reform

The Wall Street Journal editorial page has taken time out of its busy Novak-defending schedule to attack the state of Wisconsin:

Texas, Georgia and even Mississippi have all passed tort reform to improve their economies and stop the exodus of doctors. But now bidding to take their place as a favorite trial lawyer destination is the previously sensible state of Wisconsin, led by its Supreme Court.


The 4–3 court majority offered the highly creative judgment that caps on [noneconomic] damages are “patently arbitrary” with “no rational relationship to a legitimate government interest.” But if discouraging frivolous legal claims to make health care more affordable and available for regular citizens isn’t “a legitimate government interest,” we’d like to know what is.

The WSJ backs up their conservative position with the claim that “recent studies” have shown noneconomic damages, which make up more than 70% of malpractice awards, are the damages that “tend to drive up insurance rates and drive doctors to other states.”


It’s no surprise that the WSJ doesn’t actually cite the study that backs up these dubious claims. On the contrary, the New York University Law Review published a comprehensive study of 22 states found that “the imposition of caps on noneconomic damages has no statistically significant effect on overall compensatory damages in medical malpractice jury verdicts or trial court judgments”.

In fact, the caps are sometimes the cause of the problem. In what has been described as the crossover effect, researchers have found that “[where] noneconomic damages are limited by caps, plaintiffs’ attorneys will more vigorously pursue, and juries will award, larger economic damages, which are often unbounded.”