Chapter 4.G--Malpractice Reform

There is a burgeoning literature on the current medical malpractice insurance situation, and President Bush's proposal to cap noneconomic damages.  Prof. Bill Sage has aptly commented that, "it is striking . . . that Congress is actively debating whether to adopt [a package of reforms] enacted in California in 1975, . . . [yet] the health care system has undergone revolutionary change since [then].  It is as if Rip van Winkle awoke from his twenty-year nap and went about his business equipped with antique weapons and dressed in yesteryear's fashions without the current townspeaple thinking anything was amiss."  William M. Sage, Unfinished Business: How Litigation Relates to health Care Regulation, 28 J. Health Politics Policy & L. 387, 392 (2003).

Whether apocryphal or not, it has been heard said that the burden of liability insurance, relative to income, is greater for New York City taxi drivers than for physicians.

Two state supreme courts have upheld the constitutionality of a $250,000 cap on noneconomic damages.  The Colorado decision also upheld a $1 million cap on total damages.  Garhart v. Columbia/Health (Colo. 2004);   Judd v. Drezga (Utah 2004).  The Wisconsin Supreme Court, however, struck down its $350,000 cap on noneconomic damages as not meeting even the rational basis standard of review.  Ferdon v. Wisconsin Patients Compensation Fund, Wis., No. 2003AP988, 7/14/05.  See generally Carly N. Kelly & Michelle M. Mello, Are Medical Malpractice Damagaes Caps Constitutional? An Overview of State Litigation, 33 J. L. Med. & ethics 515 (2005).  For more evidence and analysis regarding damage caps, see Catherine M. Sharkey, Unintended consequences of medical malpractice damages caps, 80 N.Y.U. L. Rev. 391-512 (2005) (documenting that caps on noneconomic damages have led to higher economic awards).  

Regarding the scope of medical malpractice reform statutes, see Garland Community Hospital v. Rose (Tex. 2004) (negligent credentialing claims against a hospital fall within the scope of this statute).

For insights into how the medical malpractice insurance market works, see William M. Sage, Medical malpractice insurance and the emperor's clothes, 54 DePaul L. Rev. 463-484 (2005).

Contrasting with the adamant position of most physicians in the present day calling for fundamental tort reform, it is interesting to observe physicians’ historical response to the first medical malpractice crisis, 150 years ago:
It is undoubtedly a very great grievance, that a physician or surgeon, after having conscientiously and to the best of his abilities devoted himself to the cure or relief of his patient, should be subjected to a prosecution for damages, if the result of the case be contrary to the patient’s wishes, or even his own hopes and predictions.  To the medical man this appears peculiarly hard . . .  [However], the medical profession could not with any justice claim exemption from those responsibilities which all the members of the community incur in every engagement mutually entered upon. Neither would it be possible for the law to provide for any other method of deciding cases of this nature than by the trial by jury; for though at first there appears to be an absurdity in twelve men, indifferently selected, deciding upon such questions as whether a particular fracture has been properly treated or not, the same objection may be made to a  jury-trial of many other questions on subjects apart from usual pursuits, and requiring particular study for their understanding.  It appears but a natural demand to the medical man, that his treatment should be judged by his medical peers; but the patient might object that his claims might not have a fair hearing.  One having an action for land-damages against a railroad corporation would hardly be content to submit the decision to a jury of stockholders, although he might be very far from impeaching their integrity in any manner or degree.  Reflection will convince us that if these cases are unfortunately brought to the law for decision, it is only by a jury-trial that they can be decided.
S. Parkman & Calvin P. Fiske, Report on the Causes and Prevention of Suits for Mal-Practice 123-24 (1853) (Proceedings of the Massachusetts medical Society, Annual Meeting)

Regarding the discussion problem at the end of this section, it might be helpful to consult the following article, which discusses the different values and objectives that doctors, lawyers, and others bring to the medical malpractice system.  Michael J. Saks, Daniel Strouse, & Nicholas Schweitzer, A Multiattribute Utility Analysis of Legal System Response to Medical Injuries, 54 Depaul L. Rev. 277 (2005).  See also Roger B. Dworkin, The process paradigm: rethinking medical malpractice, 41 Wake Forest L. Rev. 509-536 (2006).

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