Solving the Medical Malpractice Problem: Difficulties in Defining What “Works”

U.S. General Accounting Office, Medical Malpractice: No Agreement on the Problems or Solutions, GAO/HRD-86-50, Washington, DC (February, 1986).

U.S. Department of Health and Human Services, Report of the Task Force on Medical Liability and Malpractice, Washington, DC: U.S. Government Printing Office (August, 1987); Secretary of U.S. Department of Health and Human Services, Model Health Care Provider Liability Reform Act, Washington, DC (December, 1987); U.S. Tort Policy Working Group, An Update on the Liability Crisis, Washington, DC: U.S. Department of Justice (March, 1987) [hereafter Tort Policy Working Group, 1987]; U.S. Tort Policy Working Group, Report on the Causes, Extent and Policy Implications of the Current Crisis in Insurance Availability and Affordability, Washington, DC: U.S. Department of Justice (February, 1986) [hereafter Tort Policy Working Group, 1986]. See also Kapp M.B. , “Medical Malpractice: The Current Federal Role” Vol. 2, No. 3, pp. 10–14, “The Older Patient” (September, 1988); H.R. 4317, “The Professionals' Liability Reform Act of 1988,” introduced by Rep. D. Ritter, March 30, 1988.

This article makes no attempt to explain or justify why medical malpractice has thus far attracted more concrete reform attention than many other areas of third party liability that have also been affected by the tort liability insurance crisis. Several potential factors contributing to the emphasis on medical malpractice might be suggested: The role of the insurance industry in promoting particular perceptions; the strength of the medical lobby; and cultural sensitivity to inhibiting the practice of medicine. In any event, this author offers no value judgment about whether medical malpractice suits are special or, if there is to be any reform, whether the entire third party liability system should be changed uniformly. Instead, the current reform activity regarding medical malpractice is taken as a reality for purposes of this article and is analyzed as a distinct phenomenon.

E.g., American Medical Association/Specialty Society Medical Liability Project, A Proposed Alternative to the Civil Justice System for Resolving Medical Liability Disputes: A Fault-Based, Administrative System, Chicago (January, 1988); American Hospital Association, Medical Malpractice Task Force Report on Tort Reform and Compendium of Professional Liability Early Warning Systems for Health Care Providers, Chicago (May 1986).

See, e.g., Nolin C.E. Witt M.D. , “Recent Medical Malpractice Reform Measures in Eight Key States,” 6 Health Matrix 3 (1988).

See Note 1, supra.

Alonso W. Starr P. , (eds.), The Politics of Numbers. New York: Russell Sage Foundation (1988).

See Meyers A.R. , “‘Lumping It’: The Hidden Denominator of the Medical Malpractice Crisis,” 77 American journal of Public Health 1544 (December, 1987).

Bovbjerg R.R. , “Medical Malpractice on Trial: Quality of Care is the Important Standard,” 49 Law and Contemporary Problems 321 (Spring, 1986).

Danzon P.M. , “The Frequency and Severity of Medical Malpractice Claims: New Evidence,” 49 Law and Contemporary Problems 57 (Spring, 1986). See Law S. , “A Consumer Perspective on Medical Malpractice,” 49 Law and Contemporary Problems 305, 313–315 (1986). Professor Law argues that individual malpractice claims do little to improve the quality of medical care or to better the physician/patient relationship and communication. Since malpractice law has had only a modest pro-consumer effect, she submits, items of importance to consumers will require collective, systemic action to transform the nature of medical care delivery. For a somewhat dated study concluding that there are not enough data to evaluate the impact of the American malpractice system on the quality of medical care, see Brook Bructoco Williams , “The Relationship Between Medical Malpractice and Quality of Care,” 1975 Duke Law Journal 1197 (1975). Cf. Bell , “Legislative Intrusions into the Common Law of Medical Malpractice: Thoughts about the Deterrent Effect of Tort Liability,” 35 Syracuse Law Review 939 (1984) (concluding that the widespread existence of malpractice insurance destroys any deterrent effect); Robertson , “Informed Consent in Canada: An Empirical Study,” 22 Osgoode Hall Law Journal 139 (1984) (concluding that even among those Canadian physicians who were aware of a Canadian Supreme Court decision expanding the physician's communication obligations toward the patient and imposing liability for inadequate communication, most physicians still adopted a paternalistic stance and told their patients only what they themselves thought the patients ought to know).

United States General Accounting Office, Medical Malpractice: Six State Case Studies Show Claims and Insurance Costs Still Rise Despite Reforms, GAO/HRD-87-21, Washington, DC (December, 1986), at 9.

See U.S. General Accounting Office, Medical Malpractice: A Framework for Action, GAO/HRD-87-73, Washington, DC (May, 1987), at 2, 8-10.

American Hospital Association, Note 4, supra, at 17.

Robinson G.O. , “The Medical Malpractice Crisis of the 1970's: A Retrospective,” 49 Law and Contemporary Problems 5, 20–21 (1986).

Zuckerman S. Koller C.F. Bovbjerg R.R. , “Information on Malpractice: A Review of Empirical Research on Major Policy Issues,” 49 Law and Contemporary Problems 85, 101 (1986).

U.S. Tort Policy Working Group, 1987, Note 2, supra, at Chapter 6.

Id.

Danzon P. Lillard L. , The Resolution of Medical Malpractice Claims: Research Results and Policy Implications (Rand Corporation, Report No. LR-2793-ICJ, 1982).

Zuckerman , Note 15, supra, at 101; Danzon , Note 10, supra.

Danzon , Note 10, supra.

U.S. Tort Policy Working Group, 1987, Note 2, supra, at 69–70.

U.S. General Accounting Office, Note 11, supra.

See also United States General Accounting Office, Medical Malpractice: Case Study on California, GAO/HRD-87-21S-2, Washington, DC (December, 1986), at 10–11.

See also U.S. General Accounting Office, Medical Malpractice: Case Study on Indiana, GAO/HRD-87-21S-4, Washington, DC (December, 1986), at 12–13; Bowen O.R. , “A Look Back at Medical Liability—And a Look Ahead: The HHS Strategy,” Federation of American Health Systems Review 18, 20 (November/December, 1987) (Secretary of DHHS noting that “observers in Indiana” credit 1975 tort reforms, including a $500,000 limit on total damages, with keeping Indiana's liability insurance premiums relatively modest in cost).

Coyne J.K. , “Need Seen for Sweeping Tort Reform Now to Cope with Growing Liability Crisis,” Federation of American Health Systems Review 26, 28 (November/December, 1987).

Danzon P.M. , Note 10, supra; Danzon P.M. Lillard L. , Note 18, supra.

See Powser R.M. Hamermesh F. , “Medical Malpractice the Second Time Around: Why Not Arbitrate?” 8 Journal of Legal Medicine 283, 301 (June, 1987).

Id.

Danzon , Note 10, supra, at 27.

Id., at 21, 27.

Robinson , Note 14, supra, at 107.

See Notes 22-24, supra.

Danzon , Note 10, supra, at 21, 28.

See Smith , “Battling a Receding Tort Frontier: Constitutional Attacks on Medical Malpractice Laws,” 38 Oklahoma Law Review 195 (1985) (“It is questionable whether screening panels have been effective in settling cases or reducing costs. In New York an ad hoc committee on medical malpractice panels, appointed by New York's chief administrative judge, found the review board panel was ineffective and costly and recommended it be abolished.” Id., at 222. See also Note, “A Practical Assessment of Arizona's Medical Malpractice Screening System” 1984 Arizona State Law Journal 335 (1984) (noting defects in Arizona's screening panel system).

Shmanske S. Stevens T. , “The Performance of Medical Malpractice Review Panels,” 11 Journal of Health Politics, Policy and Law 525 (1986).

Danzon , Note 10, supra.

Id.

Id.

Danzon Lillard , Note 18, supra.

Id.

Id.

Although an earlier Danzon study had stated the tentative conclusion that limits on the contingency fees of plaintiffs' attorneys (a) reduced the size of out-of-court settlements by 9 percent, (b) reduced by 1.5 percent the cases litigated until verdict was reached, and (3) increased by 5 percent the cases dropped without any indemnity, Danzon Lillard , “Settlement Out of Court: The Disposition of Medical Malpractice Claims,” 12 Journal of Legal Studies 345 (1983), Professor Danzon's later study using nationwide claims experience over the full decade 1975 through 1984 indicated that limiting contingency fees appeared to have no systematic effect on the number of malpractice claims filed or the size of awards, Danzon, Note 10, supra.

American Medical Association, Socioeconomic Characteristics of Medical Practice 1987, Chicago: 1986–1987 AMA Socioeconomic Monitoring Core Surveys.

See Coyne , Note 25, supra, at 28.

Tort Policy Working Group, 1987, Note 2, supra, at 92–95 (citing U.S. General Accounting Office, Note 11, supra); U.S. General Accounting Office, Note 22, supra.

Bowen, Note 24, supra, at 20; U.S. General Accounting Office, Note 11, supra; U.S. General Accounting Office, Note 23, supra.

Sloan F. , “State Responses to the Medical Malpractice Insurance ‘Crisis’ of the 1970s: An Empirical Assessment,” 9 Journal of Health Politics, Policy and Law 629 (1985).

U.S. General Accounting Office, Medical Malpractice: Case Study on Arkansas, GAO/HRD-87-21S-1, Washington (December, 1986).

U.S. General Accounting Office, Medical Malpractice: Case Study on Florida, GAO/HRD-87-21S-3, Washington, DC (December, 1986).

U.S. General Accounting Office, Medical Malpractice: Case Study on New York, GAO/HRD-87-21S-5, Washington, DC (December, 1986).

U.S. General Accounting Office, Medical Malpractice: Case Study on North Carolina, GAO/HRD-87-21S-6, Washington, DC (December, 1986).

Crane M. , “How Malpractice Insurers Dictate Treatment,” Medical Economics 23, 25–26 (July 27, 1987).

Meyers A.R. , Note 8, supra, at 1547.

American Medical Association, Note 4, supra.

See U.S. General Accounting Office, Note 1, supra.

In 1986 alone, two-thirds of the state legislatures enacted malpractice reform legislation of one sort or another. Tort Policy Working Group, 1987, Note 2, supra, at 4.

Zuckerman Koller Bovbjerg , Note 15, supra, at 103; Hodges M.R. , “Tort Reform and Medical Malpractice: A Risk Management Leader's Analysis,” Federation of American Health Systems Review 32, 33 (November/December, 1987).

U.S. Department of Health and Human Services, Note 2, supra, at 46.

Tort Policy Working Group, 1986, Note 2, supra, at 74–75.

American Hospital Association, Nontraditional Approaches to the Medical Malpractice Crisis, Chicago: AHA Office of Legal and Regulatory Affairs, Legal Memorandum Number 12 (December 1987), at 25.

American Medical Association, Note 4, supra.

Hodges , Note 57, supra, at 32–33.

Tort Policy Working Group, 1986, Note 2, supra, at 70–72.

U.S. Department of Health and Human Services, Note 2, supra, at 39–40.

American Medical Association, Note 4, supra, at 149–150.

American Hospital Association, Note 4, supra.

Louis Harris and Associates, Inc., Public Attitudes Toward the Civil Justice System and Tort Law Reform (Study No. 864014), New York, March, 1987 [hereafter Harris Poll], cited in U.S. General Accounting Office, Note 12, supra, at 28–29.

Hodges , Note 57, supra, at 33.

U.S. Department of Health and Human Services, Note 2, supra, at 38–39.

Tort Policy Working Group, 1986, Note 2, supra, at 66–69.

American Medical Association, Note 4, supra, at 145–147.

American Hospital Association, Note 4, supra.

Poll Harris , Note 67, supra.

Hodges , Note 57, supra, at 33.

U.S. Department of Health and Human Services, Note 2, supra, at 37.

Tort Policy Working Group, 1986, Note 2, supra, at 64–65.

American Medical Association, Note 4, supra, at 150.

American Hospital Association, Note 4, supra.

Harris Poll, Note 67, supra.

Hodges, Note 57, supra, at 32.

U.S. Department of Health and Human Services, Note 2, supra, at 33–34.

American Medical Association, Note 4, supra, at 160.

Hodges, Note 57, supra, at 32.

U.S. Department of Health and Human Services, Note 2, supra, at 41–42.

Tort Policy Working Group, 1986, Note 2, supra, at 69–70.

American Medical Association, Note 4, supra, at 150–152.

American Hospital Association, Note 4, supra.

Hodges, Note 57, supra, at 32.

U.S. Department of Health and Human Services, Note 2, supra, at 35–37.

American Hospital Association, Note 4, supra.

Tort Policy Working Group, 1986, Note 2, supra, at 72–74.

Harris Poll, Note 67, supra.

See Federation of State Medical Boards of the United States, Inc., A Guide to the Essentials of a Modern Medical Practice Act (1985), available from the FSMB, 2630 West Freeway, Suite 138, Fort Worth, Texas 76102-7199.

See U.S. Department of Health and Human Services, Note 2, supra, at 22–24.

See U.S. Department of Health and Human Services, Note 2, supra, at 25–28.

U.S. Department of Health and Human Services, Note 2, supra, at 179–204.

Id., at 181–182. See also Danzon , Note 10, supra, on the need for research on the frequency of iatrogenic patient injuries.

Danzon , Note 10, supra, at 182–184.

Id., at 184–185.

Id., at 185–186.

Id., at 186–187.

Id., at 187–188.

Id., at 188.

Id., at 188–196.

Id., at 196–199.

Id., at 199–204.

The DHHS Office of the Assistant Secretary for Planning and Evaluation sponsored a research conference on Health Care Improvement and Medical Liability, April 17, 1988, Washington, D.C. Summaries are available from ASPE.

Levine , “Social and Behavioral Science Support at NSF: An Insider's View,” in Guide to Federal Funding for Social Scientists ( Quarles S.D. , ed). New York: Russell Sage Foundation (1986).

For example, New York state is currently funding the Harvard Medical Practice Study Group to investigate the frequency of iatrogenic injuries among hospitalized patients, as well as the relationship of these iatrogenic injuries to medical negligence and legal liability. Presumably, the results of this research project will exert a strong influence on future medical liability policymaking in the sponsoring state (and perhaps other states).

Most notably, the Robert Wood Johnson Foundation in Princeton, New Jersey, is currently sponsoring a multi-part, multimillion dollar research initiative on the etiology of medical malpractice claims, their prevention, and methods for their fair and efficient resolution. See Harvard Medical Practice Study Group, Medical Care and Medical Injuries in the State of New York: A Pilot Study, Boston (April 1987).

“Tort Reform Act Impact Unknown,” Florida Bar News (February 1, 1988), at 6.

Hunter , “What We Do: The Humanities and the Interpretation of Medicine,” 8 Theoretical Medicine 367, 373–374 (1987).

Newsweek (January 26, 1987), at 63.