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
Prof. Bill Sage has aptly commented that, "it is striking . . . that
is actively debating whether to adopt [a package of reforms] enacted in
California in 1975, . . . [yet] the health care system has undergone
change since [then]. It is as if Rip van Winkle awoke from his
nap and went about his business equipped with antique weapons and
in yesteryear's fashions without the current townspeaple thinking
was amiss." William M. Sage, Unfinished Business: How Litigation
Relates to health Care Regulation, 28 J. Health Politics Policy &
387, 392 (2003).
Whether apocryphal or not, it has been heard said that the burden of
insurance, relative to income, is greater for New York City taxi
than for physicians.
- For relevant government documents, see U.S. Dept. Health and
New Health Care Crisis: Improving Health Care Quality and Lowering
by Fixing our Medical Liability System (2002); U.S. Government
Implications of Rising Premiums on Access to Health Care (GAO-03-836,
U.S. Government Accounting Office, Medical
Malpractice Insurance: Multiple Factors have Contributed to Increased
Rates (GAO-03-702, 2003).
- For current statistics about trends
in the number, amount, and types of paid claims, see the Annual Reports
of the National
Practitioner Databank. See also Amitabh
Chandra, et al., The Growth of Physician Medical Malpractice Payments, W5
Health Aff. 240 (May 31, 2005).; Univ.
on Lawyers, Civil Justice, and the Media, Medical
Malpractice Claiming In Texas. For more on malpractice premiums, see Marc A. Rodwin,
et al., Malpractice Premiums and Physicians' Income: Perceptiosn of a
Crisis Conflict with Empirical Evidence, 25(3) Health Aff. 750 (June
- For insightful academic commentary, see Wm. Sage & Rogan
eds., Medical Malpractice in the U.S. Health Care System: New Century,
Different Issues (Cambridge Univ. Press, forthcoming 2006); Thomas
Baker, The Medical Malpractice Myth (2005); Symposium, 27 J. Leg. Med.
1 (2006); Symposium, 33 J. L. Med. & Ethics 414 (2005); Symposium,
5 Yale J. Health Policy, L. & Ethics 341 (2005); Symposium,
23(4) Health Affairs
(Aug. 2004); Symposium, 54 Depaul L. Rev. 203 (2005); Symposium, 26 N.
Ill. U. L. Rev. 439 (2006); William M. Sage,
the First Malpractice Crisis of the 21st Century, Health Law Handbook,
Alice Gosfield, ed. (West, 2003); David Studder, Michelle Mello
Troyen Brennan, 350 New Eng. J. Med. 283 (2004); Catherine T. Struve,
Doctors, The Adversary System, and Procedural
Reform in Medical Liability Litigation, 72 Fordham L. Rev. 944 (2004);
Mitchell J. Nathanson, It's the
economy (and combined ratio), Stupid:
the medical malpractice litigation crisis myth and the factors
to reform, 108 Penn St. L. Rev. 1077-1122 (2004); Comment, 82 N.C. L.
759 (2004); Bryan A. Liang & LiLan Ren, Medical Liability Insurance
and Damage Caps, 30 Am. J. L. & Med. 501 (2004).
- A useful website is the Project
Medical Liability in Pennsylvania, funded by The Pew Charitable
Trusts. Two good overviews and literature reviews are Michelle
M. Mello, Medical Malpractice: Impact of the Crisis and Effect of State
Tort Reforms (May 2006) and Michelle
M. Mello, Understanding Medical Malpractice Insurance: A Primer (Jan.
Two state supreme courts have upheld the constitutionality
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
Regarding the scope of medical malpractice reform statutes,
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:
malpractice, 41 Wake Forest L. Rev. 509-536 (2006).
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