The effect of care quality on medical malpractice litigation

This paper analyzes the effect on medical malpractice litigation of the quality of the medical care provided by the defendant. Our data set includes measures of the quality of the defendant’s medical care. We explore the extent to which information about care quality or negligence is incorporated in three evaluations of the plaintiff’s claim, each based on a different amount of information: (1) the initial reserve, chosen by the risk manager when he first learns of the existence of the claim; (2) the mediation award, made after a hearing, and after pretrial discovery is under way or completed; and (3) the settlement payment, made after the parties have acquired all the information they think it is worthwhile to acquire. We develop a simple model of the correlation between estimates (1) and (2) and the settlement payment.We find that the initial reserve provides no information about care quality. Several alternative measures indicate that the mediation award includes substantial information about the quality of care, but less than that reflected in the settlement payment. Given the recent growth in the use of methods of alternative dispute resolution such as mediation, it is important to learn how well these methods determine whether the care at issue meets the legal standard. Thus our finding that the mediation award includes substantial information about care quality may be our most interesting result.     

The Reform of Medical Malpractice Law:

The major stimulus for the extensive, state level, reform of medical malpractice during the past two decades was the widespread belief in a malpractice crisis. The perception of a crisis arose in the 1960s largely because of what was viewed as sudden and dramatic increases in the malpractice liability of physicians. However, historical data demonstrate that the common perception that physician liability increased suddenly and dramatically beginning in the 1960s Is incorrect. Since malpractice reform has been based upon the false premise that the medical malpractice liability system, previously working smoothly, was in disarray, the soundness of much of the malpractice reform which has occurred in the past two decades is questioned.     

Analysis of the effects of settlement of interfirm lawsuits

This study examines the effects of news on settlement of interfirm lawsuits. We hypothesize that the defendant firms suffer damaged reputation as news on the interfirm lawsuit remains in the ‘public eye’, as such ending the litigation process through settlement is good news for the defendant firms. Thus, the stock market will react positively to the defendants when news of a settlement is announced. On the other hand, settlements end the free publicity that the plaintiffs enjoy. In addition the plaintiffs settle for less money than they initially seek. Thus, the implication of a reduced cash flow expectations that the announcement of settlements brings to the plaintiffs will cancel out the positive reputation effect. Therefore, there will be no significant stock market reaction to the plaintiffs when a settlement is announced. Furthermore, the stock market will show no significant reaction to the defendants who have been the subject of more than one lawsuit in a relatively short period of time prior to a settlement because their reputation is too severely damaged to be remedied through removal of their name from the limelight. The results of our analysis support the hypotheses and offer some insight for strategy development. Copyright © 2006 John Wiley & Sons, Ltd.     

Arbitration of Statutory Employment Discrimination Claims in a Nonunion Environment: A Guide to Procedural Fairness

The previous decade has seen an increasing trend toward the use of arbitration to resolve statutory employment discrimination claims. The enforceability of most private sector arbitration agreements arising in a nonunion setting is reviewable under the Federal Arbitration Act. Such arbitration agreements are most often created by management and become a condition of employment. To represent a feasible alternative to court litigation, employers and employees must have confidence that outcomes achieved through the arbitration process will be enforced by the courts as final and binding upon the parties to the dispute. The extent to which an arbitration agreement adequately protects the procedural and remedial rights of the participants is an important issue affecting the probability that a court will enforce the outcome of an arbitration procedure. This paper reviews guidelines provided by the courts and practitioners to aid in the design of an effective and legally enforceable arbitration procedure to resolve statutory employment discrimination claims arising in a private sector nonunion environment.     

Auditor liability rules under imperfect information and costly litigation: the welfare-increasing effect of liability insurance

This paper examines auditor liability rules under imperfect information, costly litigation and risk-averse auditors. A negligence rule fails in such a setting, because in equilibrium auditors will deviate with positive probability from any given standard. It is shown that strict liability outperforms negligence with respect to risk allocation and the probability that a desired level of care is met by the auditor if competitive liability insurance markets exist. Furthermore, our model explains the existence of insurance contracts containing obligations a type of contract often observed in liability insurance markets.     

论公证债权文书在融资担保业务中的正效用

在担保公司的业务实践中,如何最大限度的保护担保公司的追偿权,是一个至关重要却又困难重重的问题。按照《担保法》、《物权法》等相关法律的规定,担保公司可以与反担保人进行协商折价,或者以拍卖、变卖反担保物的形式实现债权。但在实践中,担保公司权益的实现需要通过诉讼(或者仲裁)、执行等司法阶段才能得以保障,使得担保公司的维权成本巨大。但是,公证债权文书却具有诉讼或者仲裁所不具备的独特优势,为担保公司的维权之路开辟了一条更为便捷、有效的新途径。     

比例责任制与连带责任制下审计风险的比较研究

在比例责任制体系下,每一个被告人应负担的责任范围在于他所造成的损害部分。在连带责任制下,每一个被告人要对原告的所有损失负责,比例责任制是根据每个被告人不同的过错程度分摊责任。这样,一个被告人只需要对法院判定下其应该承担的责任部分进行赔偿。本文对比例责任制降低与连带责任制有关的欺诈和审计风险的效力进行了研究。     

Arbitration systems and negotiations

We consider a model of bargaining by concessions where agents can terminate negotiations by accepting the settlement of an arbitrator. The impact of pragmatic arbitrators—that enforce concessions that precede their appointment—is compared with that of arbitrators that act on principle—ignoring prior concessions. We show that while the impact of arbitration always depends on how costly that intervention is relative to direct negotiation, the range of scenarios for which it has an impact, and the precise effect of such impact, does change depending on the behavior—pragmatic or on principle—of the arbitrator. Moreover the requirement of mutual consent to appoint the arbitrator matters only when he is pragmatic. Efficiency and equilibrium are not aligned since agents sometimes reach negotiated agreements when an arbitrated settlement is more efficient and vice versa. What system of arbitration has the best performance depends on the arbitration and negotiation costs, and each can be optimal for plausible environments.      

The impact of litigation risk on the association between audit quality and auditor size: Evidence from China

We examine whether audit quality varies across different sizes of CPA firms under high or low auditor‐specific litigation risk exposure. We measure audit quality by the issuance of modified audit opinions and the audit fees charged to clients, and we use the organizational form of CPA firms as the proxy for auditors’ litigation risk exposure, where a partnership (limited liability) CPA firm represents a high (low) litigation risk exposure. Built on Choi, Kim, Liu, and Simunic's (2008) theoretical framework, we hypothesize that the litigation risk exposure of CPA firm moderates the association between auditor size and audit quality. Our results show that when the auditor's liability is capped (i.e., registered as a limited liability form of CPA firm), larger size CPA firms are associated with higher audit quality when compared to smaller size CPA firms. However, this positive association between auditor size and audit quality disappears for audit firms that are subject to high litigation risk exposures (i.e., registered as a partnership form of CPA firm). Our research provides new insights on the impact of auditor‐specific litigation risks on the relation between audit quality and auditor size. In particular, we show that only when auditor‐specific litigation risk is limited, do large CPA firms appear to perform higher quality audits than small CPA firms.     

Dispute resolution and litigation in the construction industry. Evidence on conflicts and conflict resolution in The Netherlands and Germany

The construction industry is regarded to be a tough and competitive business characterized by short-term and opportunistic relations rather than being based on cooperative partnerships. In particular, conflicts and litigation have been claimed to proliferate in the construction industry. Upon closer inspection of the literature, it seems that the empirical basis of these claims is largely circumstantial. Using data on contractor–subcontractor relations in the construction industry in The Netherlands, we consider the extent to which litigation in construction is common. Then we compare the results to similar data sets on IT-purchasing both in The Netherlands and Germany, and to a data set with more general business-to-business transactions of larger Dutch and German firms. We find some evidence that the construction industry has higher percentages of transactions leading to either arbitration, suspension of the relation, or legal steps (1.6% versus 1.2, 0.4 and 0.6). The differences are however not as extreme as one might conclude based on superficial reading of the popular and scientific literature, and certainly not bigger than the differences between the other data sets.     

Emotions in litigation contests

This paper introduces the concept of emotions into the standard litigation contest. Positive or negative emotions emerge when litigants either win or lose at trial and depend in particular on the level of defendant fault. Our findings establish that standard results of litigation contests change significantly when emotions are taken into account. We show that emotions may increase or decrease individual and total equilibrium contest effort, introduce an asymmetry into the contest, and reinforce or weaken a plaintiff’s incentives to bring a suit. In addition, we consider how emotions impact on justice.     

The Effects of Mandatory Arbitration of Employment Discrimination Claims: Perceptions of Justice and Suggestions for Change

The ability of employers to require employees to submit claims of discrimination to final and binding arbitration in lieu of exercising their statutory rights represents a significant change in public policy. The methods traditionally used by enforcing agencies to investigate discrimination claims provide assistance and intervention that redress power asymmetries between employees and employers. Depriving employees of these enforcement mechanisms and requiring them to use arbitration may have adverse effects on perceptions of justice, both in procedural and distributive terms. We propose that mutuality, equality, and remediality are issues that must be addressed in situations of mandatory arbitration. We also suggest that mandatory arbitration may have other effects including expanding the scope of issues well beyond discrimination claims.     

Modern Pirates: How Arbitration Lawyers Help Corporations Seize National Assets and Limit State Autonomy

Large‐scale companies have worked for centuries with the governments of powerful nations to extract wealth from the rest of the world. Since the 1990s, one important method of continuing that legacy has been the use of secretive legal proceedings known as investor‐state dispute settlements (ISDS). Through this innocuous‐sounding practice, transnational corporations (TNCs) are able to blame foreign governments for their failure to extract as large a profit as they anticipated from their operations abroad. Asserting that changes in fiscal, environmental, or social policies have harmed them, TNCs have claimed that foreign governments should compensate them for the loss of potential revenues. ISDS tribunals have awarded billions of dollars as a result of such claims, mostly made under the auspices of bilateral investment treaties. Not only must governments spend millions of dollars defending themselves against assaults and tens or hundreds of millions if they lose their cases, but the ISDS system also has a chilling effect on the adoption of legislation designed to protect the health and safety of citizens. As a result of all the lawsuits in which corporations collect damages from governments under investment treaties, an array of groups in the legal industry have profited substantially: law firms representing corporate interests, arbitrators and other specialists in corporate arbitration, and litigation funders. The arbitration industry is, as a practical matter, the glue that holds the system together. The law firms involved in this industry do not wait passively for cases to arise. Instead, they actively pursue corporations to seek arbitration with governments, proselytize for the legitimacy of the current international investment regime, and block reforms that would limit arbitration opportunities. By creating methods of insulating TNCs from normal business risks and forcing host governments to bear the burden of liabilities, the arbitration system has effectively reinstituted a neo‐colonial regime through the judicial system.     

Case characteristics affecting the method of grievance dispute settlement

In 1986, we reported the results of an attempt to model the inner, workings of grievance arbitration. We concluded that the primary determinant of whether or not a grievance is settled privately or through arbitral award is the degree of private, outside legal representation. This article extends that work. Utilizing a more sophisticated statistical technique with a better specified list of explanatory variables, it identifies two additional grievance case characteristics that influence the method of grievance settlement: case complexity and type of dispute. The probability of an arbitrated settlement is greatest where the issue is simple and involves discipline and where the parties are represented by private, outside attorney advocates.     

Predicting stock splits with the help of firm-specific experiences

Evidence exists of abnormal stock returns at and following stock split announcements. The successful prediction of splits may therefore enhance investor returns, yet few studies attempt such forecasts. We note a neglected aspect of prior prediction studies—that companies enjoying a favorable stock market response to a previous split are more likely to split again. Firms in industries with a record of favorable post-split performance may also be more likely to split. We find that inclusion of these factors enhances split prediction accuracy. We also find that with these factors our split prediction model generates significant abnormal returns.     

论我国医疗纠纷的ADR解决机制的发展与完善

我国现存的医疗纠纷ADR解决机制缺乏人财保障性、统一性、公平性和规范性,建议大力推广中立专业的人民调解机制,逐步完善合理规范的行政调解机制,规范发展公平正义的协商机制,有限发展"选择终局型"仲裁机制。     

Insights to compulsory arbitration: the Jamaican experience1

Jamaica is no stranger to compulsory arbitration. Its Public Utility Undertakings and Public Services Arbitration Law (popularly known as the Essential Services Law) has been on the statute book since 1952, providing for compulsory arbitration in essential industries. During the period under review in this paper (1952–69) some 79 cases were heard. Additionally, a number of cases involved court litigation and/or illegal direct action by groups of employees or employers. The Jamaican experience has been full. This paper will seek to present and analyse what has happened in the field of compulsory arbitration in Jamaica and draw appropriate conclusions as to the relevance of the findings for other societies.     

Equity and arbitration in major league baseball

Equity theory argues that workers examine their job performance and salaries relative to workers in comparable situations. If compensation is inequitable, workers may adjust their behavior. We test the hypothesis that an arbitration‐eligible player in Major League Baseball is more likely to file for arbitration and/or proceed to an arbitration hearing if he feels he is underpaid relative to his comparison other. Bivariate probit is used to increase efficiency and correct for the sample bias in estimating decision models within the two‐step arbitration process. The results indicate that equity is a significant predictor of a player's unilateral decision to file but is an insignificant determinant of going to a hearing because of offsetting responses to equity by player and owner. Copyright © 2002 John Wiley & Sons, Ltd.     

Litigation Risk and Corporate Voluntary Disclosure: Evidence from Two Quasi-Natural Experiments

Abstract

We examine the effect of litigation risk on corporate voluntary disclosure using two quasi-natural experiments, which have substantial and opposing impacts on the litigation risk of firms headquartered in the Ninth Circuit. We find that firms in the Ninth Circuit decrease (increase) the quantity and quality of their voluntary disclosure, relative to control firms, when their litigation risk is lowered (elevated). The pre-treatment test shows an indistinguishable trend between treatment and control firms. A battery of robustness checks indicates that our results are not driven by alternative explanations. We hypothesize and find that the impact of litigation risk is more pronounced when firms have bad news and that firms are more likely to preempt bad news through voluntary disclosures when litigation risk is elevated. Overall, results from both experiments suggest that litigation risk causally increases corporate voluntary disclosure.     

Advances in physician profiling: the use of DEA

Insurers, health plans, and individual physicians in the United States are facing increasing pressures to reduce costs while maintaining quality. In this study, motivated by our work with a large managed care organization, we use readily available data from its claims database with data envelopment analysis (DEA) to examine physician practices within this organization. Currently the organization evaluates primary care physicians using a profile of 16 disparate ratios involving cost, utilization, and quality. We employed these same factors along with indicators of severity to develop a single, comprehensive measure of physician efficiency through DEA. DEA enabled us to identify a reference set of “best practice” physicians tailored to each inefficient physician. This paper presents a discussion of the selection of model inputs and outputs, the development of the DEA model using a “stepwise” approach, and a sensitivity analysis using superefficiency scores. The stepwise and superefficiency analyses required little extra computation and yielded useful insights into the reasons as to why certain physicians were found to be efficient. This paper demonstrates that DEA has advantages for physician profiling and usefully augments the current ratio-based reports.