Medical Professional Liability and the Delivery of Obstetrical Care Volume II, An Interdisciplinary Review (1989) / Chapter Skim
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The Virginia Birth-Related Injury Compensation Act: Limited No-Fault Statutes as Solutions to the 'Medical Malpractice Crisis'
The Virginia Birth-Related Injury Compensation Act: Limited No-Fault Statutes as Solutions to the 'Medical Malpractice Crisis'
Pages 194-212
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From page 194... ...
The crisis presumably consists of significant increases in the number and value of medical malpractice claims, the mounting unavailability to medical care providers of liability insurance, and the growing possibility that such providers will respond to these circumstances by cutting back on or refusing altogether to provide needed health care services. Although several possible solutions are considered, limited no-fault statutes such as the recently enacted Virginia BirthRelated Neurological Injury Compensation Act are the major focus of concern.
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From page 195... ...
A greater percentage of medical malpractice claims actually reach trial than is typical in other areas of tort liability,2 perhaps reflecting the relatively higher costs to the defendants of appearing to admit fault by agreeing to a settlement. Medical malpractice trials are lengthy and expensive.
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From page 196... ...
Limited No-Fault Statutes In contrast to the DCE approach limited no-fault statutes such as the Virginia Birth-Relatec] Neurological Injury Compensation Act focus narrowly on a specifically cleaner]
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From page 197... ...
In most states the common-law tort system governing medical malpractice claims has survived statutory tinkering largely if not completely intact.~° The DCE System The DCE system proposed by the ABA study might be implemented by statute, but it need not be. Indeed, the ABA study assumed that a DCE pilot program would be adopted initially and experimentally by contract, probably by a health maintenance organization, which would include such a compensation system in its basic contract with subscribers.
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From page 198... ...
The Traditional Tort System In a medical malpractice action brought under traditional tort principles the plaintiff must show that the health care provider failed to conform to the commonly accepted standards of his or her particular branch of the medical profession.~3 That is, the plaintiff must show provider fault. The standard is relatively vague, and most often the question of liability is for the jury to decide on general instructions.
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From page 199... ...
Controllability by the health care provider is not the only criterion. One might include on the list of designated compensable events adverse outcomes that are not generally within the control of providers but that result from medical procedures that are close substitutes for procedures whose outcomes are included.
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From page 200... ...
Thus, the Virginia statute appears to be primarily a "reduce the liability costs of providers" approach, rather than a "reduce the transaction costs of handling medical malpractice claims" approach. The manner in which the Virginia statute describes the compensable event raises questions regarding the objectives being served by this narrowly focused compensation scheme.
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From page 201... ...
In addition the DCE approach determines the insurance premiums on the basis of the provider's experience rating, helping to establish incentives for providers to exercise care.23 For adverse outcomes not included on the DCE list, victims and their families are left to the traditional tort system, with its combination of liability insurance or self-insurance for the providers any loss insurance or self-insurance for the victims, families, and communities involved.
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From page 202... ...
The Traditional Tort System Under traditional tort, the amount that a successful plaintiffrecovers is tailored to fit the facts of each particular case. Out-of-pocket expenses are allowed, including medical expenses and lost earnings.26 In addition, losses of future earning potential are allowed,27 as are awards for intangible elements of loss such as conscious pain and suffering.28 An important feature of the traditional tort system is the collateral source rule, which refuses to deduct amounts received by the plaintiff from outside sources when calculating the tort damage award.29 Outside sources may, by contract, arrange ahead of time with their insured to be repaid out of the tort recovery, but the tort system ignores such collateral in calculating tort damages.
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From page 203... ...
The latter approach wouIcI enhance the providers' incentives to exercise care in controlling adverse outcomes. Abolishing the collateral source rule subsidizes the DCE compensation system, blunting the incentive to take care.
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From page 204... ...
Expert testimony plays a significant role in medical malpractice cases. Given their heavy reliance on expert testimony, medical malpractice cases are relatively expensive to adjudicate.37 The costs to the defendants, both in time taken to testify at the trial and mental and emotional upset, are substantial.38 More than half of the states have introduced procedural reforms that require specially established screening panels to hear medical malpractice claims before plaintiffs take the claims to court.39 The erects of screening panels vary from jurisdiction to jurisdiction.
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From page 205... ...
The Tradilwnal Tort System Traditional tort may be fairly characterized as being unconcerned with whether other liability or compensation systems exist. Tort law simply moves forward with its own agenda and lets the chips (in terms of other possible sources of compensation for accident victims)
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From page 206... ...
The one exception to the exclusivity of the no-fault remedy relates to the plaintiffs right to bring a tort action notwithstanding coverage under the statute when he or she can show, on clear and convincing evidence, that the covered physician or hospital intentionally or willfully caused the birth-related neurological injury.49 Even such a claim of intentional fraud will be barred if it is brought after an award under the compensation statute becomes conclusive and binding.50 Interestingly, the Virginia statute does not address the process by which the families of victims are notified, ex ante, regarding whether their rights to recover for injuries will be limited to the compensation scheme. The statute describes the process by which physicians and hospitals opt into the program, but there is no explicit mention of how the families of potential victims—patients of such participating physicians and hospitals—learn of the fact that their physician or their hospital has opted to be covered.
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From page 207... ...
It maintains a commitment to deterrence by defining compensable events in terms of adverse outcomes that health care providers may control through the exercise of care. Thus, the DCE approach compensates victims only when to do so would, over time, raise the levels of care among health care providers.
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From page 208... ...
The Virginia No-Fault Statute When one turns to the Virginia statute to assess its goals and objectives, the narrowness of the defined compensable event creates suspicion that the major objectives were not deterrence and compensation but rather the riddance of an especially troublesome (from the physician's perspective) subset of malpractice claims.
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From page 209... ...
It might also be more difficult in this context than in the DOE system's elective surgery context to weed out high-risk patients ahead of time when defining who among the larger group may recover for adverse outcomes from the medical procedure. But the Virginia statute's reliance on causation will probably cause considerable mischief Viewed from the perspective of one seeking to discern its overall goals and objectives, the Virginia statute strikes this observer as something of an odd duck.
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From page 210... ...
of such a narrowly focused statute. Beyond the question of constitutionality, the act is problematic in several regards, all of which have been touched on earlier: its reliance on the element of causation may present intractable problems of proof; its disregard for patients' need to know about their rights ahead of time is troubling; the manner in which the scheme is funded, with its major beneficiaries being subsidized generally by physicians in Virginia, raises questions; and the overall impression that the act is aimed primarily at reducing obstetricians' exposure in the hottest of medical malpractice hot spots gives me reason to wonder if this statute may not be the first of a series of similar legislative responses to vocal, politically influential constituencies.
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From page 211... ...
Given the overlap between the DCE lists and the sorts of injuries for which recovery could be had under traditional negligence principles, the DCE system would presumably eliminate a substantial portion of the existing medical malpractice caseload; if the transaction costs associated with the cases based on unlisted outcomes were deemed unacceptable, the DCE statute might increase the plaintiffs burden of proof to, for example, clear and convincing evidence.
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From page 212... ...
For a recent critique of the collateral source rule in the context of medical malpractice claims, see, generally, McDowell, B
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