here to read the Health Care Quality Improvement Act, which governs
the National Practitioner Data Bank.
Its website contains Annual Reports, which provide current statistics about trends in the number, amount, and types of paid claims.
See also Amitabh Chandra, et al., The Growth of Physician Medical Malpractice Payments, W5 Health Aff. 240 (May 31, 2005).;
Regarding per-diem computation of
pain and suffering awards, see Note, 92 Va. L. Rev. 289-325
For another court accepted a limited action by
parents for "wrongful birth," see Schirmer v. Mt. Auburn
Obstetrics & Gynecologic Assocs., No. 2004-0296 (Ohio Mar. 3,
In Florida, physicians successfully sponsored a ballot initiative in
2004 to cap lawyers' contingency fees in medical malpractice cases, in
order to deter suits, but lawyers got the upper hand with a competing
also approved by voters, that automatically revokes the medical license
of any physician who has three malpractice judgments against him.
It is widely believed that this mandatory "three strikes" law will
huge pressure on physicians to quickly settle suits against them, in
to avoid any strikes, and therefore will greatly increase the number of
Reporting Medical Errors.
The concern that the threat of liablity deters reporting medical errors
and therefore hampers quality improvement is receiving renewed
attention in the public policy community. Congress recently
enacted the Patient Safety and Quality Improvement Act of 2005 (P.L.
109-41), which protects from discovery any reports of medical errors
made by health care providers to certified "patient safety
organizations," such as the Joint Commission (JCAHO). Attacking
the view that liability exposure deters error reporting or quality
improvement, see David A. Hyman and Charles M.
The Poor State of Health Care Quality in the U.S.: Is Malpractice
Part of the Problem or Part of the Solution?, 90 Cornell L. Rev. 893
For a thorough literature review of empirical research on settlement
practices, see Philip G. Peters, What we Know about Malpractice
For thorough analysis and critique of states' increased efforts to disclose physicians' malpractice histories, see Matthew E. Brown, Redefining the physician selection process and rewriting medical malpractice settlement disclosure webpages, 31 Am. J.L. & Med. 479-507 (2005). Links to each state's physician profile webpage can be accessed at http://www.docboard.org/docfinder.html The disclosure cite in Massachusetts is: http://profiles.massmedboard.org/Profiles/MA-Physician-Profile-Find-Doctor.asp
Problem: Valuing a "Personal Injury"
Joe Jenks is paralyzed from the waist down as a result of negligently performed surgery on his back. At the time of the surgery he was thirty years of age and employed as a forklift operator for Wheeling Manufacturing Co. He graduated from high school at age eighteen, spent two years in the army (receiving an honorable discharge), and immediately after discharge went to work for Wheeling. Before the surgery he was in good health, except for chronic back pain that plagued him for six months after he fell while playing basketball. He earned $30,000 as a forklift operator in the year before the accident. In addition, that same year he earned $20,000 moonlighting as a security guard on evenings and weekends. He has never been married and lives alone.
He was a below-average student in high school, graduating at the bottom of his class. He was, however, a well-liked and ambitious young man who had a strong aptitude for mechanics. His paralysis is permanent.
Jenks has filed suit against his orthopedic surgeon, alleging that the surgery was negligently performed and that he was not adequately informed of the risks of the surgery. If a jury decides the case in favor of Jenks, what is the likely award? How much is the case worth if it is settled without a lawsuit? How much is the case worth if it is settled after commencement of a lawsuit but before substantial discovery? How much is the case worth if it is settled on the day of trial when the parties are ready to pick a jury? What additional information would you want before placing a value on the case? . . .
In assessing the settlement value of the case, it is useful to list the dominant factors that may influence the verdict and assign a grade to each factor. . . . Counsel might come up with the following figures:
|Past diminution in earning capacity||$ 30,000|
|Future diminution in earning capacity||$ 900,000|
|Past medical expenses||$ 120,000|
|Future medical expenses||$ 650,000|
|Pain and suffering and other intangibles||$1,700,000|
|High verdict potential||$3,400,000|
Next counsel must assess the potential impact of the factors that influence damage awards on this potential high verdict. In our example counsel will assign a percentage value to each of the considerations and arrive at an average percentage that he will use to multiply the high potential verdict. If a particular factor supports the high potential verdict, he will assign a high percentage, and if it is detrimental to the verdict, he will assign a low percentage.
|Strength of liability evidence||75%|
|Attitude of judge||50%|
|Attractiveness of plaintiff||100%|
|Attractiveness of defendant||50%|
|Strength of damage experts||75%|
|Attitude of jury in jurisdiction||10%|
Obviously, this kind of computation is not a scientific exercise,
it lacks an empirical basis to support its use. In addition, the
does not address the important considerations of inflation and
approaches that may be required in the jurisdiction. The goal of the
is simply to . . . conduct a realistic evaluation of the settlement
of the case and prepare an effective case on damages in the event that
the case cannot be settled.
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