Tort reform

Question: Criticisms of the current tort system for compensating medical injuries include all of the following, except:

A. It’s a lottery-style system where worthy cases go uncompensated and some frivolous ones end up with windfall verdicts.

B. It is inefficient and raises medical costs.

C. The United States is about the only country with such an adversarial system, as other developed countries have adopted a no-fault approach.

D. Annual medical liability premiums can exceed $100,000 in high-risk specialties.

E. Defensive medicine is believed to be an adverse consequence of unbridled malpractice litigation.

Answer: C. Justice, compensation, and deterrence are the ostensible objectives of the tort system, but its use in litigating injuries arising out of medical treatment can lead to unfair and inefficient results.

Only relatively few injured people file actions, and they typically wait many years for resolution. Even with soaring insurance premiums, it has been said that the system returns some 28 cents of every insurance dollar to the victim, with the remainder gobbled up by legal, expert, and court fees and by profits and transactional overhead.

In some jurisdictions, high-risk specialists pay six-figure premiums for coverage. The fear of being sued leads to excessive testing, termed defensive medicine, and that adds to health care costs.¹

Still, the tort approach is used in most countries to resolve medical liability allegations, with the United States at the forefront of reform efforts to improve the system.

Tort reforms are nothing new. In the 1980s, the U.S. Attorney General’s Tort Policy Working Group released findings in strong support of tort reform. The group concluded that "while there are a number of factors underlying the insurance availability/affordability crisis, tort law is a major cause."

The best-known reform proposal is a cap on noneconomic losses such as pain and suffering, typically without abridging compensation for medical expenses and lost wages. The rationale is to provide some predictability because noneconomic damages are difficult to quantify and jury sympathy may result in unrealistically high payments. California was one of the pioneers in this area, and many others have since followed suit, including Florida, Illinois, Kansas, Missouri, and Texas. Statutory caps vary somewhat from state to state but are typically $250,000-$500,000.

Predictably, caps on damages have been challenged as a violation of equal protection and the patient’s right to a jury trial. By and large however, they have been upheld, as in California and, most recently, Texas and Kansas.

The California Supreme Court for example, ruled that reforms passed by the legislature in 1975 under its Medical Injury Compensation Reform Act (MICRA)² – which, among other measures, limits noneconomic recovery in medical negligence cases to $250,000 – are constitutional because they are rationally related to the legitimate legislative goal of reducing medical costs.

Other jurisdictions, however – notably Georgia and Missouri – have ruled them unconstitutional. In 2010, the Supreme Court of Illinois famously held that the state’s $500,000 cap for noneconomic damages violated the separation of powers doctrine.³

Notwithstanding arguments from trial lawyers and others, most doctors and insurers believe that limits on pain and suffering can reduce insurance premiums.

A 2004 study reported that states with caps evidence a loss ratio (losses plus costs over premiums) that is 12% lower than in those without damage caps.⁴ Lower premiums in turn are linked to greater physician entry into the locality, especially high-risk specialists. In addition, caps may have a salutary effect on the wasteful practice of defensive medicine. A 2007 report by the American Medical Association (AMA) confirmed and extended an earlier study that reached such conclusions.⁵

Screening panels and arbitration

Two other tort reforms that have seen good acceptance are the use of screening panels and arbitration.

Many states have set up screening panels, with the objective of weeding out frivolous or nuisance suits. Some are mandatory, as they are in Massachusetts, while others are optional, such as Alaska. In some states, such as New Hampshire, unanimous panel findings are admissible as evidence at a subsequent trial, whereas states like Hawaii do not allow panel findings in court.

A 2008 study commissioned by the AMA revealed that states with screening panels had 20% lower medical liability insurance rates, corresponding to lower claim costs.

Critics, however, contend that pretrial screening panels only prolong the litigation process and increase costs without substantial corresponding benefit. In Ohio, pretrial screening panels were tried and abandoned for these reasons.

In a recent New Hampshire case, the state Supreme Court allowed the jurors to hear the unanimous panel findings absolving a defendant alleged to have delayed making a diagnosis of meningitis. The court upheld the constitutionality of the statute and rejected the argument that such a screening process impermissibly encroaches on core judicial functions. ⁶

Mandatory or optional arbitration or mediation are sensible reform suggestions, as these methods of dispute resolution are less combative, more efficient, cheaper, and faster in bringing closure. Unfortunately, relatively few doctor-patient encounters incorporate a contract to submit disputes to arbitration, and these usually relate to disputes over fees rather than to injuries.

Other reform proposals that have been proposed include mandatory structured periodic payments in lieu of lump-sum payments, penalties for frivolous suits, shortened statutes of limitations, stricter standards for expert witnesses, making the "loser" pay all attorney fees and court costs, and limiting attorney contingency fees.

No-fault alternative?

Then there is the no-fault solution.⁷ In many instances, fault simply cannot be ascertained when an individual is injured during the course of medical treatment, as harm may be a natural and unavoidable consequence of the underlying illness or treatment. Medical no-fault must therefore embrace in some fashion the concept of compensating only avoidable injuries.

Herein lies the dilemma: How to identify the avoidable injury, or the so-called compensable event?

In 1974, New Zealand’s no-fault compensation system came into effect under its Accident Compensation Act. All accidental injuries, including medical injuries, were removed from the tort system and covered by this act. In practice, about 40% of malpractice claims were denied.

Because of escalating payout costs, however, a special Medical Misadventure Account was created in 1992 to specifically handle malpractice damages. Professional liability premiums, which are experience rated, fund this account.⁸

Under the initial scheme, injured patients did not have to prove fault but merely establish "medical, surgical, dental, or first aid misadventure." Although negligence was not necessary, what constituted medical misadventure was not defined. At the same time, the law stipulated that "not all medical negligence comes within the scope of medical misadventure," and common law tort actions for medical negligence remained available.

Despite this lack of both definitional and functional clarity, the Accident Compensation Commission was quite definite that it was not necessary to show negligence before a claim for medical misadventure would succeed.

However, the revised Act of 1992 now requires the claimant to show "medical error," which is defined as "the failure of a registered health professional to observe a standard of care and skill reasonably to be expected in the circumstances." With this definition, which is the legal language for negligence, the no-fault system of compensating medical injuries in New Zealand has effectively been subsumed by the fault-based tort system.

Fine-tuning no-fault insurance

At the height of the malpractice crisis in the 1970s, Jeffrey O’Connell, J.D., advanced a novel approach to address some of these no-fault concerns.⁹ His proposal gives the medical provider the option to tender payment to the patient for economic loss within 6 months of injury in exchange for foreclosure of future tort action by the injured victim. Compensation benefits for net economic loss include 100% of lost wages, replacement service loss, medical treatment expenses, and reasonable attorney’s fees. Noneconomic losses are not reimbursable, and payment is net of any benefits from collateral sources.

H.R. 5400, entitled the Alternative Medical Liability Act (AMLA), incorporated many of these features and came before the 98th U.S. Congress in 1984. Both the American Medical Association, which favors traditional tort reforms, and the Association of Trial Lawyers of America opposed the bill. The bill died in committee and was reintroduced the following year in the 99th Congress as the Medical Offer and Recovery Act, H.R. 3084. It was referred to five committees but no hearings were held. There has been no action on the proposal since.

The prognosis for comprehensive meaningful reform is guarded at best. It should be emphasized that not everyone believes the current tort system needs fixing.

As one observer put it nearly a decade ago: "Overall, the total payout for medical malpractice insurers in the United States is about $4 billion a year, which is about half of what we spend annually on cat and dog food."¹⁰

Dr. Tan is emeritus professor of medicine at the University of Hawaii. This article is meant to be educational and does not constitute medical, ethical, or legal advice. It is adapted from the author’s book, "Medical Malpractice: Understanding the Law, Managing the Risk" (2006). For additional information, readers may contact the author at siang@hawaii.edu. This column, "Law & Medicine," regularly appears in Internal Medicine News.

References

1. See Internal Medicine News, May 1, 2012, Defensive Medicine.

2. Medical Injury Compensation Reform Act of 1975, Cal. Civ. Proc. Code § 3333.2 (West 1982).

3. Lebron v. Gottlieb Mem’l Hosp., 930 N.E.2d 895 (Ill. 2010).

4. Kenneth E. Thorpe, The Medical Malpractice Crisis: Recent Trends and the Impact of State Tort Reforms, 4 Health Affairs 20 (2004).

5. American Medical Association Policy Research Perspectives: "The Impact of Liability Pressure and Caps on Damages on the Healthcare Market: An update of Recent Literature."

6. In Re: Petition of Southern New Hampshire Medical Center & a.

7. Tan, S.Y. The Medical Malpractice Crisis: Will No-Fault Cure the Disease? Univ. Haw. Law Rev. 9:241-274, 1987.

8. Gellhorn, W. Medical Malpractice Litigation (U.S.) Medical Mishap Compensation (N.Z.). Cornell L. Rev. 1988;73:170.

9. O’Connell, J. No-Fault Insurance for Injuries Arising from Medical Treatment: A Proposal for Elective Coverage. Emory L. J. 1975;24:21.

10. Doroshow, J. Are Caps the Answer to the Malpractice Crisis? Internal Medicine News, Dec. 1, 2004, p. 8.

Question: Criticisms of the current tort system for compensating medical injuries include all of the following, except:

A. It’s a lottery-style system where worthy cases go uncompensated and some frivolous ones end up with windfall verdicts.

B. It is inefficient and raises medical costs.

C. The United States is about the only country with such an adversarial system, as other developed countries have adopted a no-fault approach.

D. Annual medical liability premiums can exceed $100,000 in high-risk specialties.

E. Defensive medicine is believed to be an adverse consequence of unbridled malpractice litigation.

Answer: C. Justice, compensation, and deterrence are the ostensible objectives of the tort system, but its use in litigating injuries arising out of medical treatment can lead to unfair and inefficient results.

Only relatively few injured people file actions, and they typically wait many years for resolution. Even with soaring insurance premiums, it has been said that the system returns some 28 cents of every insurance dollar to the victim, with the remainder gobbled up by legal, expert, and court fees and by profits and transactional overhead.

In some jurisdictions, high-risk specialists pay six-figure premiums for coverage. The fear of being sued leads to excessive testing, termed defensive medicine, and that adds to health care costs.¹

Still, the tort approach is used in most countries to resolve medical liability allegations, with the United States at the forefront of reform efforts to improve the system.

Tort reforms are nothing new. In the 1980s, the U.S. Attorney General’s Tort Policy Working Group released findings in strong support of tort reform. The group concluded that "while there are a number of factors underlying the insurance availability/affordability crisis, tort law is a major cause."

The best-known reform proposal is a cap on noneconomic losses such as pain and suffering, typically without abridging compensation for medical expenses and lost wages. The rationale is to provide some predictability because noneconomic damages are difficult to quantify and jury sympathy may result in unrealistically high payments. California was one of the pioneers in this area, and many others have since followed suit, including Florida, Illinois, Kansas, Missouri, and Texas. Statutory caps vary somewhat from state to state but are typically $250,000-$500,000.

Predictably, caps on damages have been challenged as a violation of equal protection and the patient’s right to a jury trial. By and large however, they have been upheld, as in California and, most recently, Texas and Kansas.

The California Supreme Court for example, ruled that reforms passed by the legislature in 1975 under its Medical Injury Compensation Reform Act (MICRA)² – which, among other measures, limits noneconomic recovery in medical negligence cases to $250,000 – are constitutional because they are rationally related to the legitimate legislative goal of reducing medical costs.

Other jurisdictions, however – notably Georgia and Missouri – have ruled them unconstitutional. In 2010, the Supreme Court of Illinois famously held that the state’s $500,000 cap for noneconomic damages violated the separation of powers doctrine.³

Notwithstanding arguments from trial lawyers and others, most doctors and insurers believe that limits on pain and suffering can reduce insurance premiums.

A 2004 study reported that states with caps evidence a loss ratio (losses plus costs over premiums) that is 12% lower than in those without damage caps.⁴ Lower premiums in turn are linked to greater physician entry into the locality, especially high-risk specialists. In addition, caps may have a salutary effect on the wasteful practice of defensive medicine. A 2007 report by the American Medical Association (AMA) confirmed and extended an earlier study that reached such conclusions.⁵

Screening panels and arbitration

Two other tort reforms that have seen good acceptance are the use of screening panels and arbitration.

Many states have set up screening panels, with the objective of weeding out frivolous or nuisance suits. Some are mandatory, as they are in Massachusetts, while others are optional, such as Alaska. In some states, such as New Hampshire, unanimous panel findings are admissible as evidence at a subsequent trial, whereas states like Hawaii do not allow panel findings in court.

A 2008 study commissioned by the AMA revealed that states with screening panels had 20% lower medical liability insurance rates, corresponding to lower claim costs.

Critics, however, contend that pretrial screening panels only prolong the litigation process and increase costs without substantial corresponding benefit. In Ohio, pretrial screening panels were tried and abandoned for these reasons.

In a recent New Hampshire case, the state Supreme Court allowed the jurors to hear the unanimous panel findings absolving a defendant alleged to have delayed making a diagnosis of meningitis. The court upheld the constitutionality of the statute and rejected the argument that such a screening process impermissibly encroaches on core judicial functions. ⁶

Mandatory or optional arbitration or mediation are sensible reform suggestions, as these methods of dispute resolution are less combative, more efficient, cheaper, and faster in bringing closure. Unfortunately, relatively few doctor-patient encounters incorporate a contract to submit disputes to arbitration, and these usually relate to disputes over fees rather than to injuries.

Other reform proposals that have been proposed include mandatory structured periodic payments in lieu of lump-sum payments, penalties for frivolous suits, shortened statutes of limitations, stricter standards for expert witnesses, making the "loser" pay all attorney fees and court costs, and limiting attorney contingency fees.

No-fault alternative?

Then there is the no-fault solution.⁷ In many instances, fault simply cannot be ascertained when an individual is injured during the course of medical treatment, as harm may be a natural and unavoidable consequence of the underlying illness or treatment. Medical no-fault must therefore embrace in some fashion the concept of compensating only avoidable injuries.

Herein lies the dilemma: How to identify the avoidable injury, or the so-called compensable event?

In 1974, New Zealand’s no-fault compensation system came into effect under its Accident Compensation Act. All accidental injuries, including medical injuries, were removed from the tort system and covered by this act. In practice, about 40% of malpractice claims were denied.

Because of escalating payout costs, however, a special Medical Misadventure Account was created in 1992 to specifically handle malpractice damages. Professional liability premiums, which are experience rated, fund this account.⁸

Under the initial scheme, injured patients did not have to prove fault but merely establish "medical, surgical, dental, or first aid misadventure." Although negligence was not necessary, what constituted medical misadventure was not defined. At the same time, the law stipulated that "not all medical negligence comes within the scope of medical misadventure," and common law tort actions for medical negligence remained available.

Despite this lack of both definitional and functional clarity, the Accident Compensation Commission was quite definite that it was not necessary to show negligence before a claim for medical misadventure would succeed.

However, the revised Act of 1992 now requires the claimant to show "medical error," which is defined as "the failure of a registered health professional to observe a standard of care and skill reasonably to be expected in the circumstances." With this definition, which is the legal language for negligence, the no-fault system of compensating medical injuries in New Zealand has effectively been subsumed by the fault-based tort system.

Fine-tuning no-fault insurance

At the height of the malpractice crisis in the 1970s, Jeffrey O’Connell, J.D., advanced a novel approach to address some of these no-fault concerns.⁹ His proposal gives the medical provider the option to tender payment to the patient for economic loss within 6 months of injury in exchange for foreclosure of future tort action by the injured victim. Compensation benefits for net economic loss include 100% of lost wages, replacement service loss, medical treatment expenses, and reasonable attorney’s fees. Noneconomic losses are not reimbursable, and payment is net of any benefits from collateral sources.

H.R. 5400, entitled the Alternative Medical Liability Act (AMLA), incorporated many of these features and came before the 98th U.S. Congress in 1984. Both the American Medical Association, which favors traditional tort reforms, and the Association of Trial Lawyers of America opposed the bill. The bill died in committee and was reintroduced the following year in the 99th Congress as the Medical Offer and Recovery Act, H.R. 3084. It was referred to five committees but no hearings were held. There has been no action on the proposal since.

The prognosis for comprehensive meaningful reform is guarded at best. It should be emphasized that not everyone believes the current tort system needs fixing.

As one observer put it nearly a decade ago: "Overall, the total payout for medical malpractice insurers in the United States is about $4 billion a year, which is about half of what we spend annually on cat and dog food."¹⁰

Dr. Tan is emeritus professor of medicine at the University of Hawaii. This article is meant to be educational and does not constitute medical, ethical, or legal advice. It is adapted from the author’s book, "Medical Malpractice: Understanding the Law, Managing the Risk" (2006). For additional information, readers may contact the author at siang@hawaii.edu. This column, "Law & Medicine," regularly appears in Internal Medicine News.

References

1. See Internal Medicine News, May 1, 2012, Defensive Medicine.

2. Medical Injury Compensation Reform Act of 1975, Cal. Civ. Proc. Code § 3333.2 (West 1982).

3. Lebron v. Gottlieb Mem’l Hosp., 930 N.E.2d 895 (Ill. 2010).

4. Kenneth E. Thorpe, The Medical Malpractice Crisis: Recent Trends and the Impact of State Tort Reforms, 4 Health Affairs 20 (2004).

5. American Medical Association Policy Research Perspectives: "The Impact of Liability Pressure and Caps on Damages on the Healthcare Market: An update of Recent Literature."

6. In Re: Petition of Southern New Hampshire Medical Center & a.

7. Tan, S.Y. The Medical Malpractice Crisis: Will No-Fault Cure the Disease? Univ. Haw. Law Rev. 9:241-274, 1987.

8. Gellhorn, W. Medical Malpractice Litigation (U.S.) Medical Mishap Compensation (N.Z.). Cornell L. Rev. 1988;73:170.

9. O’Connell, J. No-Fault Insurance for Injuries Arising from Medical Treatment: A Proposal for Elective Coverage. Emory L. J. 1975;24:21.

10. Doroshow, J. Are Caps the Answer to the Malpractice Crisis? Internal Medicine News, Dec. 1, 2004, p. 8.

Question: Criticisms of the current tort system for compensating medical injuries include all of the following, except:

A. It’s a lottery-style system where worthy cases go uncompensated and some frivolous ones end up with windfall verdicts.

B. It is inefficient and raises medical costs.

C. The United States is about the only country with such an adversarial system, as other developed countries have adopted a no-fault approach.

D. Annual medical liability premiums can exceed $100,000 in high-risk specialties.

E. Defensive medicine is believed to be an adverse consequence of unbridled malpractice litigation.

Answer: C. Justice, compensation, and deterrence are the ostensible objectives of the tort system, but its use in litigating injuries arising out of medical treatment can lead to unfair and inefficient results.

Only relatively few injured people file actions, and they typically wait many years for resolution. Even with soaring insurance premiums, it has been said that the system returns some 28 cents of every insurance dollar to the victim, with the remainder gobbled up by legal, expert, and court fees and by profits and transactional overhead.

In some jurisdictions, high-risk specialists pay six-figure premiums for coverage. The fear of being sued leads to excessive testing, termed defensive medicine, and that adds to health care costs.¹

Still, the tort approach is used in most countries to resolve medical liability allegations, with the United States at the forefront of reform efforts to improve the system.

Tort reforms are nothing new. In the 1980s, the U.S. Attorney General’s Tort Policy Working Group released findings in strong support of tort reform. The group concluded that "while there are a number of factors underlying the insurance availability/affordability crisis, tort law is a major cause."

The best-known reform proposal is a cap on noneconomic losses such as pain and suffering, typically without abridging compensation for medical expenses and lost wages. The rationale is to provide some predictability because noneconomic damages are difficult to quantify and jury sympathy may result in unrealistically high payments. California was one of the pioneers in this area, and many others have since followed suit, including Florida, Illinois, Kansas, Missouri, and Texas. Statutory caps vary somewhat from state to state but are typically $250,000-$500,000.

Predictably, caps on damages have been challenged as a violation of equal protection and the patient’s right to a jury trial. By and large however, they have been upheld, as in California and, most recently, Texas and Kansas.

The California Supreme Court for example, ruled that reforms passed by the legislature in 1975 under its Medical Injury Compensation Reform Act (MICRA)² – which, among other measures, limits noneconomic recovery in medical negligence cases to $250,000 – are constitutional because they are rationally related to the legitimate legislative goal of reducing medical costs.

Other jurisdictions, however – notably Georgia and Missouri – have ruled them unconstitutional. In 2010, the Supreme Court of Illinois famously held that the state’s $500,000 cap for noneconomic damages violated the separation of powers doctrine.³

Notwithstanding arguments from trial lawyers and others, most doctors and insurers believe that limits on pain and suffering can reduce insurance premiums.

A 2004 study reported that states with caps evidence a loss ratio (losses plus costs over premiums) that is 12% lower than in those without damage caps.⁴ Lower premiums in turn are linked to greater physician entry into the locality, especially high-risk specialists. In addition, caps may have a salutary effect on the wasteful practice of defensive medicine. A 2007 report by the American Medical Association (AMA) confirmed and extended an earlier study that reached such conclusions.⁵

Screening panels and arbitration

Two other tort reforms that have seen good acceptance are the use of screening panels and arbitration.

Many states have set up screening panels, with the objective of weeding out frivolous or nuisance suits. Some are mandatory, as they are in Massachusetts, while others are optional, such as Alaska. In some states, such as New Hampshire, unanimous panel findings are admissible as evidence at a subsequent trial, whereas states like Hawaii do not allow panel findings in court.

A 2008 study commissioned by the AMA revealed that states with screening panels had 20% lower medical liability insurance rates, corresponding to lower claim costs.

Critics, however, contend that pretrial screening panels only prolong the litigation process and increase costs without substantial corresponding benefit. In Ohio, pretrial screening panels were tried and abandoned for these reasons.

In a recent New Hampshire case, the state Supreme Court allowed the jurors to hear the unanimous panel findings absolving a defendant alleged to have delayed making a diagnosis of meningitis. The court upheld the constitutionality of the statute and rejected the argument that such a screening process impermissibly encroaches on core judicial functions. ⁶

Mandatory or optional arbitration or mediation are sensible reform suggestions, as these methods of dispute resolution are less combative, more efficient, cheaper, and faster in bringing closure. Unfortunately, relatively few doctor-patient encounters incorporate a contract to submit disputes to arbitration, and these usually relate to disputes over fees rather than to injuries.

Other reform proposals that have been proposed include mandatory structured periodic payments in lieu of lump-sum payments, penalties for frivolous suits, shortened statutes of limitations, stricter standards for expert witnesses, making the "loser" pay all attorney fees and court costs, and limiting attorney contingency fees.

No-fault alternative?

Then there is the no-fault solution.⁷ In many instances, fault simply cannot be ascertained when an individual is injured during the course of medical treatment, as harm may be a natural and unavoidable consequence of the underlying illness or treatment. Medical no-fault must therefore embrace in some fashion the concept of compensating only avoidable injuries.

Herein lies the dilemma: How to identify the avoidable injury, or the so-called compensable event?

In 1974, New Zealand’s no-fault compensation system came into effect under its Accident Compensation Act. All accidental injuries, including medical injuries, were removed from the tort system and covered by this act. In practice, about 40% of malpractice claims were denied.

Because of escalating payout costs, however, a special Medical Misadventure Account was created in 1992 to specifically handle malpractice damages. Professional liability premiums, which are experience rated, fund this account.⁸

Under the initial scheme, injured patients did not have to prove fault but merely establish "medical, surgical, dental, or first aid misadventure." Although negligence was not necessary, what constituted medical misadventure was not defined. At the same time, the law stipulated that "not all medical negligence comes within the scope of medical misadventure," and common law tort actions for medical negligence remained available.

Despite this lack of both definitional and functional clarity, the Accident Compensation Commission was quite definite that it was not necessary to show negligence before a claim for medical misadventure would succeed.

However, the revised Act of 1992 now requires the claimant to show "medical error," which is defined as "the failure of a registered health professional to observe a standard of care and skill reasonably to be expected in the circumstances." With this definition, which is the legal language for negligence, the no-fault system of compensating medical injuries in New Zealand has effectively been subsumed by the fault-based tort system.

Fine-tuning no-fault insurance

At the height of the malpractice crisis in the 1970s, Jeffrey O’Connell, J.D., advanced a novel approach to address some of these no-fault concerns.⁹ His proposal gives the medical provider the option to tender payment to the patient for economic loss within 6 months of injury in exchange for foreclosure of future tort action by the injured victim. Compensation benefits for net economic loss include 100% of lost wages, replacement service loss, medical treatment expenses, and reasonable attorney’s fees. Noneconomic losses are not reimbursable, and payment is net of any benefits from collateral sources.

H.R. 5400, entitled the Alternative Medical Liability Act (AMLA), incorporated many of these features and came before the 98th U.S. Congress in 1984. Both the American Medical Association, which favors traditional tort reforms, and the Association of Trial Lawyers of America opposed the bill. The bill died in committee and was reintroduced the following year in the 99th Congress as the Medical Offer and Recovery Act, H.R. 3084. It was referred to five committees but no hearings were held. There has been no action on the proposal since.

The prognosis for comprehensive meaningful reform is guarded at best. It should be emphasized that not everyone believes the current tort system needs fixing.

As one observer put it nearly a decade ago: "Overall, the total payout for medical malpractice insurers in the United States is about $4 billion a year, which is about half of what we spend annually on cat and dog food."¹⁰

Dr. Tan is emeritus professor of medicine at the University of Hawaii. This article is meant to be educational and does not constitute medical, ethical, or legal advice. It is adapted from the author’s book, "Medical Malpractice: Understanding the Law, Managing the Risk" (2006). For additional information, readers may contact the author at siang@hawaii.edu. This column, "Law & Medicine," regularly appears in Internal Medicine News.

References

1. See Internal Medicine News, May 1, 2012, Defensive Medicine.

2. Medical Injury Compensation Reform Act of 1975, Cal. Civ. Proc. Code § 3333.2 (West 1982).

3. Lebron v. Gottlieb Mem’l Hosp., 930 N.E.2d 895 (Ill. 2010).

4. Kenneth E. Thorpe, The Medical Malpractice Crisis: Recent Trends and the Impact of State Tort Reforms, 4 Health Affairs 20 (2004).

5. American Medical Association Policy Research Perspectives: "The Impact of Liability Pressure and Caps on Damages on the Healthcare Market: An update of Recent Literature."

6. In Re: Petition of Southern New Hampshire Medical Center & a.

7. Tan, S.Y. The Medical Malpractice Crisis: Will No-Fault Cure the Disease? Univ. Haw. Law Rev. 9:241-274, 1987.

8. Gellhorn, W. Medical Malpractice Litigation (U.S.) Medical Mishap Compensation (N.Z.). Cornell L. Rev. 1988;73:170.

9. O’Connell, J. No-Fault Insurance for Injuries Arising from Medical Treatment: A Proposal for Elective Coverage. Emory L. J. 1975;24:21.

10. Doroshow, J. Are Caps the Answer to the Malpractice Crisis? Internal Medicine News, Dec. 1, 2004, p. 8.