Catherine M. Sharkey


Unintended Consequences of Medical Malpractice Damages Caps

Catherine M. Sharkey

Previous empirical studies have examined various aspects of medical malpractice damages caps, focusing primarily upon their overall effect in reducing insurance premium rates and plaintiffs’ recoveries, and(to a lesser degree) upon other effects such as physicians’ geographic choice of where to practice and the “anchoring” effect of caps that might inadvertently increase award amounts. This Article is the first to explore an unintended crossover effect that may be dampening the intended effects of caps. It posits 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. Implicit in such a crossover effect is the malleability of various components of medical malpractice damages, which often are considered categorically distinct, particularly in the tort reform context. This Article challenges this conventional wisdom.

My original empirical analysis, using a comprehensive dataset of jury verdicts from 1992, 1996, and 2001, in counties located in twenty-two states, collected by the National Center for State Courts, concludes 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. This result is consistent with the crossover theory. Given the promulgation of noneconomic damages caps, the crossover effect may also partially explain the recently documented trend of rising economic (as opposed to noneconomic) damages in medical malpractice cases.

State Farm “With Teeth”: Heightened Judicial Review in the Absence of Executive Oversight

Catherine M. Sharkey

While courts and commentators have considered the information-forcing role of executive oversight and judicial review of agency action, the dynamic relationship between the two has yet to be considered. This Article presents a novel justification for heightened judicial scrutiny in the absence of meaningful executive oversight, premised on a reasoned decision-making basis. Judicial review of certain types of agency determinations should be more stringent because those determinations have not been vetted by executive oversight and are thus less likely to be premised on reasons backed by empirical support. Agency cost-benefit analyses and agency conflict preemption determinations—two realms rarely if ever considered together—are compared in terms of their reliance on underlying factual predicates and contrasted in terms of the existing framework for executive oversight and judicial review of agency determinations.

A heightened judicial review standard—what I term “State Farm with teeth”—should guide courts’ evaluations of the cost-benefit analyses performed by independent agencies not subject to executive oversight. This Article is the first to draw the distinction between independent and executive agencies in the State Farm hard-look context. It is also the first to explore the recent Business Roundtable decision by the D.C. Circuit through this analytical lens.

The stringent “State Farm with teeth” standard should likewise be applied to judicial review of agency determinations of conflict preemption made in the absence of executive oversight. As this Article discusses, recent developments involving the Office of the Comptroller of the Currency’s preemption assertions regarding state banking laws provide a compelling illustration of why this should be so. This Article also points to a potential new information-forcing role for Congress. Using the Dodd-Frank Act as an illustration, this Article shows how Congress can set parameters for judicial review of administrative agencies’ fact-based conflict preemption determinations.