Medical Professional Liability and the Delivery of Obstetrical Care Volume I (1989) / Chapter Skim
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7 The Legal System: The Committee's Findings and Proposals for Change
7 The Legal System: The Committee's Findings and Proposals for Change
Pages 125-146
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From page 125... ...
In examining the traditional tort litigation system for adjudicating medical malpractice claims, the committee was mindful that the problems related to the growth in medical malpractice litigation are part of an overall growth in certain kinds of tort liability lawsuits, coupled with increases in some types of jury awards and settlements. Moreover, many observers believe that the growth in litigation has engendered a general insurance crisis, which has manifested itself in sharp increases in premiums for liability insurance and, in certain situations, diminished availability or absolute withdrawal of coverage.
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From page 126... ...
Since the 1970s, every state except West Virginia has enacted some legislation modifying common-law tort doctrine that is intended to relieve the medical liability crisis, and many are discussing additional reforms. These tort reforms were designed to moderate the frequency and severity of medical malpractice claims filed in order to
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From page 127... ...
In a 1982 study Patricia Danzon examined the impact of several post-1975 tort reforms on the frequency of medical malpractice claims per capita, the amount per paid claim, and the claim cost per capita (the product of amount per paid claim and frequency of paid claims per capita)
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From page 128... ...
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From page 129... ...
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From page 130... ...
Of the tort reforms studied, only mandatory use of pretrial screening panels had a statistically significant correlation with lower malpractice insurance premiums. In her most recent, and comprehensive, examination of the medical liability issue, Danzon concluded that of the tort reforms adopted in response to that crisis [the early 1970s]
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From page 131... ...
On the basis of its findings-that the costs of the current system in terms of impaired obstetrical care are great, that tort reforms are so far largely ineffective, and that data evaluating the merits of proposed alternatives to the tort system are lacking-the committee concludes that state legislatures should not focus on further reform efforts within the existing tort system but shout instead redirect their energies toward developing alternatives to the traditional tort system for resolving medical malpractice claims and toward implementing these alternatives in certain circumstances. After extensive study of several proposals for alternative systems for resolving medical malpractice claims, the committee recommends that states consider three proposals for further research and implementation on a limited basis: the no-fault designated compensable events scheme (including the variants that have been enacted in Virginia and Florida to provide no-fault compensation for certain neurologically impaired infants)
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From page 132... ...
After examining the available literature, however, the committee thought that the three proposals that it ultimately commends to states for further evaluation are more fully developed at this time. Although the committee recognizes that each state must independently assess its own professional liability situation and evaluate various solutions in relation to its own needs, the committee believes that the federal government has a responsibility to encourage states to solve the problems associated with professional liability issues in obstetrics, to assist them in these efforts, and to coordinate the task nationally.
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From page 133... ...
The birth-related neurological injury compensation legislation enacted recently in Virginia and Florida and the federal Childhood Vaccine Injury Compensation Act are examples of limited DCE systems. Because birth-related neurological injury compensation legislation is a variant of the DCE system that relates specifically to obstetrical professional liability, a description of the Virginia act EVa.
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From page 134... ...
The average cost of paid claims appears to be low under this system; however, in interpreting these figures it is important to recognize that Sweden has generous social security measures that defray the major part of direct medical expenses (Oldertz, 19871. The Centre for Socio-Legal Studies in Oxford, England, and the King's Fund Institute in London recently recommended that Britain move toward a cause-based no-fault compensation scheme for medical injuries similar to the two models above (King's Fund Institute and Centre for Socio-Legal Studies, 1988~.
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From page 135... ...
Other research on DCE systems is currently in progress. Under the sponsorship of the Robert Wood Johnson Foundation, research on nofault medical injury compensation is currently being conducted as a joint effort of the University of Texas Health Science Center at Houston and the Urban Institute in Washington, D.C.
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From page 136... ...
Florida enacted a slightly different version of the Virginia act, the Florida Birth-Related Neurological Injury Compensation Plan, in February 1988. The Virginia act, which took effect on January 1, 1988, is intended to make professional liability insurance for obstetrician-gynecologists both available and affordable by taking claims for certain catastrophically injured newborns out of the civil justice system.
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From page 137... ...
The AMA-Specialty Society Medical Liability Project The AMA and 32 national medical specialty organizations have advanced a radical proposal to resolve medical malpractice claims (AMASpecialty Society, 19881. The proposal calls for a fault-based administrative system, under the jurisdiction of strengthened state medical boards or new state agencies, that would totally replace the existing court and jury system for resolving medical malpractice claims.
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From page 138... ...
All three components are to be administered by a revamped state medical board or by a new state agency. Claims Resolution Function Medical malpractice complaints would be submitted to an administrative agency, where they would be screened by experienced claims reviewers with the authority to examine medical records and to interview the parties.
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From page 139... ...
Private Contracts The use of private contracts setting forth the legal rights and responsibilities of health care providers and patients and stipulating arrangements to resolve disputes is another alternative to resolving medical malpractice claims. This solution would not necessarily require legislative change.
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From page 140... ...
Different consumers can specify different arrangements. Possibilities include waiving the right to a jury trial and agreeing to binding arbitration or some other alternative dispute resolution mechanism; limiting malpractice recovery rights such as noneconomic damages or collateral source payments in exchange for recovery on an agreed fixed schedule; agreeing in advance to the terms of settlement in the event of certain injuries; and agreeing in advance to certain limits on recovery (Epstein, 19761.
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From page 141... ...
Even though there is considerable experience with arbitration for medical malpractice claims, and this approach has recently received favorable judicial treatment, courts have thus far been unreceptive to situations in which providers have used standard form written contracts to reduce their liability for negligence to individual patients who enter into such contracts immediately prior to treatment [funk!
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From page 142... ...
The committee believes, however, that those savings would not necessarily exceed the savings realized from the tort system with limits on noneconomic damages and modification of the collateral source rule. Social Insurance Most health care providers whose services are subsidized by the federal government must buy their own medical malpractice insurance.
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From page 143... ...
The committee therefore recommends that the states and the federal government consider the following short-term solutions simultaneously with any efforts to resolve the medical professional liability crisis generally. Expansion of the National Health Service Corps After studying the data on the availability of obstetrical providers for publicly insured women, and particularly the effects of medical professional liability on the delivery of obstetrical care in Community and Migrant Health Centers, the committee has concluded that the National Health Service Corps (NHSC)
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From page 144... ...
Liability Coverage for Physicians Providing Public Health Services The committee noted with interest that Missouri, Hawaii, and Montgomery County, Maryland, have taken actions to reduce the professional liability risk of persons who provide public health services. Missouri's State Legal Expense Fund, effective September 28, 1987 [Mo.
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From page 145... ...
Market and regulatory approaches to medical malpractice: The Virginia Obstetrical No-Fault Statute. In Medical Professional Liability and the Delivery of Obstetrical Care: Vol.
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From page 146... ...
1989. A fault-based administrative alternative for resolving medical malpractice claims: A summary of the AMA-Specialty Society Medical Liability Project proposal and its relevance to the crisis in obstetrics.
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