Jonathan Adler beat me to talking about this Ohio Supreme Court case, but I think it presents an interesting example of “hard facts make bad law”—and, in this case, the plaintiff, an especially undeserving fellow, should have won, but didn’t.
David Gross, a teenager, was a callow sort who worked for the local KFC. Among his duties was cleaning out the pressure cooker, but Gross repeatedly ignored explicit instructions not to use water in cleaning it. This was no arbitrary command, for in November 2003, Gross did just that, and the cooker exploded, burning Gross and two co-workers. The franchise investigated and fired Gross in February 2004 for the safety violation, and sought to end their workers’ comp payments to Gross. Their theory: the egregious safety violation was a voluntary abandonment of employment. The administrative agency agreed, the court of appeals reversed, and the Ohio Supreme Court restored the original decision that the franchise didn’t have to pay workers’ comp after it fired Gross.
A Volokh commenter suggests that the fact that the franchise waited to fire Gross means that they’re on the hook. That seems like the wrong rule: it would punish the franchise for taking additional steps to ensure that it was acting fairly to its employees by investigating the incident before firing someone.
That said, it’s wrong to treat the firing, even the for-cause firing, as a “voluntary abandonment.” Workers’ comp is a no-fault regime. Raising the question of fault, even when the fault is as egregious as Gross’s here, inserts a complicating factor into the system. There’s a certain unfairness to assessing liability against the franchise: they told Gross not to do something dangerous on multiple occasions, he did it anyway, and Gross gets to recover. But the alternative is to create an ambiguous rule that gives other employers the incentive to turn workers’ comp hearings into a question of whether a worker’s negligence was really recklessness or intentional disregard for safety rules. One reduces Type I errors, while increasing Type II errors, and substantially decreasing administrative efficiency: straightforward proceedings now have uncertainty, raising expenses for everyone. Perhaps Gross should be criminally prosecuted for reckless endangerment; perhaps a penalty of a criminal conviction should include restitution to the employer. But in the civil proceeding, the legislature made a conscious decision of the tradeoffs here, and it’s not for the courts to decide that those tradeoffs should be recalibrated in individual cases.
Note that valuing efficiency here favors plaintiffs, rather than defendants, putting the lie to the argument of anti-reformers that reformers hide behind efficiency to mask a pro-defendant bias. This reformer favors efficiency because it makes all of us better off in the long run. Efficiency isn’t the only value—a society can rationally choose inefficient procedures because it believes the protected values are worth the additional cost—but the public policy debate shouldn’t ignore the questions of costs and benefits and act as if results can be achieved for free.
6 Comments
I’ve often asked you if you’ve ever seen a lawsuit in which you supported the plaintiff. Here’s at least one; I won’t ask you that question again.
“Efficiency isn’t the only value—a society can rationally choose inefficient procedures because it believes the protected values are worth the additional cost—but the public policy debate shouldn’t ignore the questions of costs and benefits and act as if results can be achieved for free.”
That’s an excellent statement, Ted. Too often, the tort reform debate turns into a fight over cost, with values set aside.
Mt. Lane has it backwards.
Justice and rationality are values that are not respected in many tort cases, medical mal practice in particular.
Senator Kennedy et al are the guys who wrongly argue that the cost of the litigation problems are small. Litigation is a human endevor so one should not expect perfection.
But the litigation errors are so gross that some reform is needed. It is needed because a civil soceiety values justice and rationality.
Mr. Nuesslein – Why would you suggest that justice and rationality are absent from many medmal cases? If a doctor commits an error that results in injury, shouldn’t that patient be compensated? Or do you contend that as long as the error was negligent and not intentional, that protecting doctors is more important than compensating injured patients?
Mr. Lane,
Peter Huber has thoughly documented the position with respect to litigation involving births. That is why insurance is so high for those who deliver babies, and Cesarean sections are so common.
Generally, mal-practice is used to compensate adverse outcomes. The problem with that is that an error is constructed to get the payment. The patient should be required to purchase adverse outcome insurance prior to medical intervention; the awards would be stipulated in the insurance policy and the patient would be allowed to finance jackpot resuts. They won’t because they will try to limit the premium. The awards now depend on whether you have a slick John Edwards do a kabuki dance before an emotionally charged irrational jury. Mal-practice litigation is inefficient, unjust and irrational.
“patient should be required to purchase adverse outcome insurance prior to medical intervention; the awards would be stipulated in the insurance policy and the patient would be allowed to finance jackpot resuts.”
I would *love* to have the option to buy medmal insurance in case I go under the knife. It’s a great idea.
“They won’t because they will try to limit the premium.”
Actually, I think the real objections would come from physicians. It’s a sure bet that insurers would track the performance of doctors and charge you higher rates for doctors with a worse record.
“Mal-practice litigation is inefficient, unjust and irrational.”
I’ll agree that SOME malpractice litigation is inefficient, unjust, and irrational… but not all.
“If a doctor commits an error that results in injury, shouldn’t that patient be compensated?”
Yes. That’s not the issue. This is:
If a doctor DOESN’T commit an error, but an injury occurs anyway, shouldn’t the doctor NOT have to compensate?
The current system is based on primarily on outcome; with procdures that have less-than-perfect succcess rates even with no errors at all, that is a severe problem.