Chapter 4.G--Malpractice Reform

There is a burgeoning literature on the recent medical malpractice insurance situation.

• For relevant government documents, see U.S. Dept. Health and Human Services, Confronting the New Health Care Crisis: Improving Health Care Quality and Lowering Costs by Fixing our Medical Liability System (2002); U.S. Government Accounting Office, Medical Malpractice: Implications of Rising Premiums on Access to Health Care (GAO-03-836, 2003).; U.S. Government Accounting Office, Medical Malpractice Insurance: Multiple Factors have Contributed to Increased Premium Rates (GAO-03-702, 2003); Congressional Budget Office (2009). 
  
• 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 Univ. Texas Center on Lawyers, Civil Justice, and the Media, Medical Malpractice Claiming In Texas. 
• Three good overviews and literature reviews are Michelle M. Mello, Medical Malpractice: Impact of the Crisis and Effect of State Tort Reforms (May 2006); Michelle M. Mello, Understanding Medical Malpractice Insurance: A Primer (Jan. 2006); and The RAND Corporation's analysis.
• For more adversarial perspectives, see American Association for Justice;  the AMA;  American Association for Justice (trial lawyers);
  

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.

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)

A rash of state supreme courts have struck down various aspects of malpractice reform:

Clarke v. Oregon Health Sciences University, 175 P.3d 418 (Or. 2007) (a sovereign immunity statute that limits the individual liability of state medical school faculty to $200,000 “emasculates” the normal malpractice remedy available at common law).

Putman v. Wenatchee Valley Medical Center, ______ (Wash. 2009) (a requirement to file a certificate of merit along with a malpractice complaint violates access to courts by "essentially require[ing] plaintiffs to submit evidence supporting their claims before they even have an opportunity to conduct discovery and obtain such evidence,” and violates separation of powers by “jeopardizing the court's power to set court procedures”).

Lebron v. Gottlieb Memorial Hospital, _____ (Ill. 2010) (cap on noneconomic damages  “unduly encroache[d] upon the fundamentally judicial prerogative of determining whether a jury's assessment of damages is excessive within the meaning of the law”).

Atlanta Oculoplastic Surgery PC v. Nestlehutt, _______ (Ga. 2010) (noneconomic damages cap violates right to a jury trial “[b]ecause the amount of damages sustained by a plaintiff is ordinarily an issue of fact,” and so is a question “peculiarly within the province of the jury.”).

See generally:  Symposium: Rethinking Medical Liability: A Challenge for Defense Lawyers, Trial Lawyers, Medical Providers, and Legislators. 37 U. Mem. L. Rev. 455-553 (2007); Michelle M., Mello, et al., Policy experimentation with administrative compensation for medical injury: issues under state constitutional law, 45 Harv. J. on Legis. 59-105 (2008);  Abigail R. Moncrieff, Federalization snowballs: the need for national action in medical malpractice reform, 109 Colum. L. Rev. 844-892 (2009) (arguing that, because federal funds pay for much of medical care, the federal government has reason to take a lead in malpractice reform);  Mary Coombs, How Not to do Medical Malpractice Reform: A Florida Case Study, 18 Health Matrix 373 (2008).

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