Time For Medical Malpractice Specialty Courts?

 

     Medical malpractice is an acknowledged problem in America.  Medical errors, whether negligent or not, are variably estimated to kill between 40,000 and 100,000 Americans yearly, and to injure four to five times that number. [1] Some expert students of the problem maintain that these numbers are underestimates.  Despite these numbers, whatever their accuracy, very few persons who are injured, and vary few families of the dead actually sue their doctors in tort for their losses.   Most of that very small percentage who du actually sue seldom reach trial, and of that small percentage, only a quarter actually prevail.[2]  Many suits are dropped after filing for lack of merit, or lack of likely success.  Many are settled, usually by negotiation between the parties’ lawyers, but some after agreeing to binding arbitration.  But overall, the “system”, as it is styled by the legal profession, compensates a vanishingly small proportion of actual injuries visited upon the patients by negligent care.  If the purpose of the tort system is to compensate the injured and restore them to their prior position before someone’s negligence injured them. If an additional purpose is to deter negligence because of the likelihood of facing personal accountability for negligent behavior, then by any outcome measure imaginable, the tort system is an abject failure.  It may well compensate a few fortunate souls, but that requirement of being fortunate leads inevitably to comparing the system to a lottery, a contention that cannot be put aside lightly.  Accessory goals of the system ought to be fairness, predictability, transparency, and availability to all deserving victims.  But unfortunately, after two hundred years of incremental development without oversight or plan, and with the pressures of competing vested interests working hard to insure their status quo, we have evolved a system that serves almost no one, except the lawyers who operate within it.
    What keeps the deserving victim out of the system?  Multiple factors exist, and are well documented.  Many people never realize that their bad outcome is the result of medical negligence or error.  A culture of silence has existed since the beginning of medical practice, and continues today.  Many people may know or suspect an error, but feel that such events are merely unfortunate, or to be expected, and do not choose to seek money damages.  Many people are simply forgiving of a doctor with whom they have a relationship, and against whom they would never speak out.  But many people who are injured do see redress, and are simply not served by the system.  They may have suffered only a moderate injury, worth small to moderate amounts of money.  Such cases have little appeal for plaintiff’s lawyers, since the potential judgment is small, and the contingency fee is therefore small.  This is no comment on the legal merit of the case, nor on the reality of the suffering of the patient, but a comment only on the realities of the market forces which drive the current system. Some cases, resulting in fatalities, are likewise unattractive from a market perspective, because the damages involved may be higher, but not nearly as high as the ongoing needs, pain and suffering of a severely injured, but living patient.  So the irony of this result is that negligence which is severe enough to cause death may go unpunished, while similar behavior not resulting in death, may bring multi-million dollar liability and shame onto the practitioner, who may, after all, have recognized the error, and done things to ameliorate it, and kept the victim alive.
    From the doctors’ perspective, somewhat surprisingly, the perception is that the numbers of suits are overwhelming, and the risk of suit to each doctor personally is very high.  This his hard to reconcile with the numbers outlined above, but this perception is very prevalent, to the point that the perceived risk by doctors has been estimated to be three times the actual risk to the physician. [3] What drives this perception?  Doctors live and die professionally, and even personally, by their reputations.  An allegation of malpractice, particularly when framed in a legal complaint and made public, is a direct, shattering blow to that reputation.  Doctors personalize the legalistic language of the complaint, detailing the “wanton disregard for the patient’s safety,” the “cruelty”, and the “reckless and callous neglect” of their alleged transgression.  Even if all is false, it is impossible not to be wounded and angered, and if here is any doubt at all on the part of the doctor, no matter how small and immaterial, the wound is so much the worse.  Then the wound is held in secret for the long lead-up to the trial, and festers, as the physician is admonished by his legal defenders to “discuss the case with no one.”  The physician waits helplessly, while people with an expertise foreign to him direct events and determine his fate.  It might be compared to the role reversal a doctor experiences undergoing exploratory surgery, with the outcome very much in doubt.   When, finally, resolution comes, it may not reflect in any way the actual fault of the doctor, and may involve large sums of money personal assets at risk, and the potential ruin of both the past and future for the defendant doctor.   And even if the judgment is in the doctor’s favor, as the majority of judgments actually are, this victory, after years and much expense and personal loss, is Pyrrhic at best.  It is easy to understand why so terrible a process should be feared excessively.  It is also easy to understand why doctors are so intractably opposed to the current system.  On the other hand, as fearful and motivating as the situation may be to doctors, the system has apparently failed by any measure to reduce the incidence of malpractice to anything approaching an acceptable level.  Rather, malpractice continues at an appalling rate, and doctors and hospitals bemoan their risks without addressing the problem of risks to the patients.  They may, and surely do, order more tests than are necessary, and pursue diagnoses to the bitter end, and intervene actively, rather than use clinical sense.  They injure even more patients with their bias toward excessive interventions and testing, and generate more expenses in excessive tests, and then in the additional tests, which are prompted by results of the first round of unnecessary tests.  Efforts to quantify this phenomenon have been unavailing, but there is no doubt that this occurs constantly, and accounts for a large portion of the waste in the medical system.
     In the 1998 book Damages, by Barry Werth, an actual malpractice case is followed from start to finish.  The various perspectives on the case are developed by interviews with the participants, and some of the inconsistency and unfairness of the process is made apparent.  The personal anguish of both sides of the dispute is likewise explored and acknowledged.   But what is made most clear is how dependent the tort system is on a confluence of a particularly poignant and ongoing misfortune, significant money damages at stake, and skilled legal practitioners motivated by their part of a potential large settlement.  The case develops as a child is born with a severe brain injury, attended by a doctor who has never met the parents before the delivery.  The child does not die, but is terribly impaired, and this becomes more apparent over the ensuing months.  A chance conversation between the mother and another woman, who bears personal animosity toward the obstetrician, sparks suspicion, and ultimately a visit to a personal injury lawyer.  The lawyer is a highly skilled and successful practitioner of the art, well respected by his peers, and feared by the medical community.  He must evaluate whether he can demonstrate the required elements of malpractice to a jury, in terms of a strange calculus unknown to doctors, or the general public.  There should, of course, have been some deviation from standard of care, and an injury.  There must be a causal connection, no matter how tenuous.  There must be a defendant with sufficient assets to support a judgment involving potentially millions of dollars, preferably an institution.  And there must be a live victim, requiring ongoing support, to push the settlement dollars into those potential millions.  The victim must be the sort that inspires sympathy.  The family cannot be too contentious, nor appear opportunistic.  They must maintain this appearance throughout a long and difficult period, during which they have no ongoing monetary support.  The victim cannot die in the interim.  The attorney must identify and hire expert witnesses to support his theory of the case.  He must front all the money involved in hiring and deposing experts, as well as the discovery and deposition of all the involved parties.  He does all this knowing that there could be an adverse outcome, and that all of his effort and money invested could be lost.  But, in the event of a successful conclusion, he stands a gain 30-40% of whatever unimaginable sum becomes the final dollar settlement.
    In the actual case, the life of a child is terribly altered, and reduced to a vacant, totally dependent subsistence.  There can be no more sympathetic victim.  The family, though dysfunctional, does pull together and maintain the needed sympathetic façade, through financial and personal details only partly revealed.  The theory of the case puts the blame on the physician, who probably did not violate any standard of care, but who is a distinctly unsympathetic player in the drama.  More importantly, the theory places blame on the hospital, which has more assets, and more insurance for a settlement.  And an institution inspires no sympathy whatever, when compared to a severely injured and permanently impaired baby.  The attorney strings this chain of events into causality, and a complaint, and then by skill and some luck forces the choice between trial and settlement.  The choice of trial might seem reasonable for the defendants, except for the uncertainties of what a jury might do in fashioning a dollar amount for this pitiful child.  The choice of a settlement is distasteful for one who feels she has committed no wrong, but the alternative uncertainty is a powerful force.  And in the end, a settlement is reached, which does represent a reasonable sum approximating the huge expense of caring for this child for a projected lifetime.  The physician settles for the limits of her insurance, rather than face a judgment after trial that exceeds that sum, and which would then be settled out of her personal assets.  It does not matter to anyone but the physician that the experts retained by the plaintiffs do not actually implicate her.  Those facts might have come out at trial, but the deal is done, and she has chosen certainty and closure over possible vindication.
    No one can claim that this system failed to compensate this particular victim and his family.   That this child and family need support is unquestionable.  However, the fact that under the current regime, fault must be found and blame assigned, and assets transferred from people and institutions who actually did nothing wrong is the real issue with the outcome.  The fact that it took years to achieve, and involved dozens of people’s full efforts to engineer, is a nearly unstated cost.  None of the negotiated result would have happened without the dedicated efforts of a skilled attorney, but it is also true that a third of the settlement went to the attorney, and not to the support of the child.  Just reward for risks taken, no doubt, but this is a cost of the system nevertheless.  What is left unstated is the more common result.  Had the child died outright, there would have been very little money at stake, and very little interest from this attorney.  Perhaps another would have managed to wrangle a small settlement from the hospital, and taken his portion, but the loss to the family would not have been compensated.  Had the family never pursued the matter, due to ignorance, or doubt that the system would help, the no compensation would ever have been forthcoming.  Or, had the matter gone to trial, and a verdict for the defense rendered, there would have been no “winner” at all.  The family would go completely unsupported, the doctor would be vindicated personally, but left permanently wounded and exhausted, and the attorney would be left to pay his costs, and await compensation in the next big case.  Given the complexity and vagaries of the system uncertainty is the rule rather than the exception.  The barriers are substantial, and the chances of success small enough, and most opt to suffer in silence.  Real injuries most commonly go uncompensated, and negligent doctors most commonly go unpunished.
    This unsatisfactory state of affairs in medical malpractice and compensation law has led to numerous efforts at “reform.”  These have generally been advanced by insurance companies and their political allies, and by physician organizations.  Opposing them are the trial lawyers and their political allies, and a loose group of  victim/patient advocates.  These reform efforts can be categorized as efforts to limit damages, limit access to courts, limit the chance of prevailing in a suit, or to force or encourage participation in alternative dispute resolution schemes.  Given their origin, there is no surprise in the observation that none of these proposals advance the interests or needs of injured patients.
    Damage limitations include statutory caps on punitive, and pain and suffering damages.  These have been adopted in multiple states, and some upheld, and some ruled unconstitutional by state courts. [4]  Efforts at limitation also include the abandonment of joint and several liability, and the allowance of inclusion of collateral source payments as offsets to the settlement.  Some states have also adopted statutes requiring scheduled payments rather than lump-sum settlements, to avoid the windfall of a large settlement of lifetime support to a patient who dies shortly after the settlement.
    Access limitations include reductions of lengths of statutes of limitations, requirements for identification of expert witnesses before filing, and pre-trial screening for merit.  These have also been tried in several states.  Pre-trial screening by a panel of physicians has proved to be largely ineffective, and has been dropped in many instances. [5]  
    Efforts to raise barriers to plaintiff success at trial have included exclusion of, or limitations of the use of res ipsa loquitur doctrine at trial, and also raising of standards required to qualify experts for trial testimony.
    Alternative Dispute Resolution (ADR) efforts are numerous, and spreading rapidly.  These differ from all the forgoing in that they have the potential, at least of increasing access and reducing barriers, while reducing the incidence of anomalous results.  Not all are equally successful in this regard, but ADR represents the coming wave of efforts to change the current status quo.  These range from private, institutional efforts at rapid settlements, (e.g. U. of Michigan’s direct settlement program) to state statutory requirements for mediation of settlements in certain types of cases, with statutory protections for disclosures or admissions associated with the process.  A significant downside for doctors is that mediation never results in vindication.  It is a process toward a goal of settlement, without admission of fault, but money will invariably change hands.  Arbitration also differs little from the current scheme, in that most cases settle rather than proceeding to trial, and settlements are already the result of negotiation, with or without a mediator.  The difference is that the settlement happens under the threat of trial, and after much of the expense and trauma of developing the case has already been suffered.  ADR offers a faster, cheaper path to what already occurs in the substantial majority of cases.
    Other alternatives proposed include workmen’s compensation style schemes, which would compensate the injured without regard to fault, but with scheduled, reduced payments, and expedited resolution.  These would have to be established on a state-by-state basis, but after experiments are tied and found successful, they might spread to other states.  The motivation for such experiments is high among the defense-oriented participants, but this has not spread to the general public, or their elected officials with sufficient force to be realized.  The main limitation of this type of scheme is that constitutional issues are raised in many states, due to guarantees of access to jury trials contained in many state constitutions.  The need for a constitutional amendment in any given state is a significant barrier to reform.  The great unknown in such schemes remains the numbers and sizes of settlements that will result, once current barriers are removed.  It is possible that such a scheme will be even more expensive than the current scheme, but it cannot possibly be less fair, transparent, efficient or accessible.  It will also have the undesired effect of shifting the costs from the private insurance sector to the public sector, and this fact alone may prove politically insurmountable.
    Examples of such experiments exist, limited to very specific types of injury.  The National Vaccine Adverse Event compensation scheme provides scheduled payments to children with specified adverse events occurring in a limited time frame after vaccination, without requirement of proof of causation. This advances the goal of encouraging universal vaccination, while taking compensation claims completely out of the tort system.  Virginia and Florida have instituted no-fault compensation schemes for birth-associated neurological injuries. These schemes compensate a very narrowly defined set of injuries associated with birth, without application to the tort system, and its inherent delays and expenses.  The purpose, from the states’ perspective, is to ensure that obstetrical care continues to be available in the state, by removing one of the most expensive and contentious areas of tort litigation from the courts, and protecting obstetricians from suit.  The narrowness of the criteria for inclusion has limited the range of application, and therefore the success of these experiments, but they remain works in progress.
    No-fault compensation schemes represent the most radical end of the spectrum of reform efforts, involving a departure from traditional rights to jury trial, and free access to courts.  As noted above, this fact alone makes the concept difficult to advance, absent a public and legislative determination that the goal of reform is worth the trouble of a state constitutional amendment.  An alternative concept, which preserves much of the familiar appearance of the current court system, yet offers hope of improvement, is the formation of specialty Medical Courts.  In concept, these courts would have exclusive jurisdiction over all tort matters involving allegations of medical injury and malpractice.  They would develop expertise among the judges presiding over them, and by virtue of that expertise, render more consistent and predictable outcomes.  Many of the proposals do away with jury trials altogether, and assign the determinations of standard of care, and questions of fact to these expert judges.  The courts would retain neutral experts to provide the required expert testimony as to standard of care, eliminating the need for adversarial experts, and the associated scourge of “hired gun” experts, willing to opine anything for a price.  At a minimum, the courts would use strict standards to qualify experts, including compliance with national standards of testimony by the experts, and reduce the variability of the competing theories of the cases.  These courts could, in theory, offer expedited scheduling and relatively rapid resolution of controversies, by pulling these matters out of the general court system, with its infamously long backlogs and procedural delays.
    The notion of specialty courts is not new.  Congress saw the need for specialty understanding and uniformity in the area of Patent Law, and in 1929 created the Court of Appeals for the Federal Circuit, with exclusive jurisdiction orer patent cases.  This court has reduced the variability of outcomes in patent controversies, and provided a consistent and predictable record of case law, upon which industries and inventors may rely.  Similarly, Tax Court was established to allow potential litigants to have specialized questions of tax law answered prior to imposition of taxes and penalties.  Litigants still have the option of using the Federal Court system, but the use of the Tax Court is incentivized by the fact that the determination in Tax Court will be made prior to payment, whereas payment must be made first, and the money recovered later, if the case is taken to Federal Court.  The result is that most cases are handled in Tax Court, and the resultant level of expertise and predictability benefits both tax practitioners and their clients.
    On a state level, similar examples exist.  Delaware is the smallest state in the Union, and yet is home to the majority of corporations in the US.  This state of affairs is largely due to the State Legislature’s establishment of the Court of Chancery, and the adoption of corporate-friendly state laws, which allow predictability of outcomes in questions of corporate law.  The Court of Chancery has decades of expertise and a tradition of consistency, while the corporate bar in Delaware has likewise developed a familiarity based on years of interaction with this specialty court.  Thus, the outcome of a particular controversy may be estimated with some precision by these attorneys, and the corporations they serve may proceed to do business with confidence in their advice.
    The establishment of specialty courts in medicine would most likely happen on a state-by-state basis, since state courts are the locus of most medical malpractice actions.  This evolution by local experiment has some advantages and disadvantages, as all evolutionary developments do.  States will vary the parameters of these courts according to local needs and customs.  Some might retain juries, and some not.  Some might allow adversarial experts, along with court-retained experts, and some not.  Some might assign exclusive jurisdiction, while others may retain access to traditional courts, but incentivize participation in the Medical Court with expedited access, simplified procedures, reduced need for expensive experts, and consistent judgments on finding of violation of standard of care, breach of duty, and causality.  As these experiments play out in the public arena, successes can be emulated, and failures modified to suit the primary beneficiaries, the people of the various states.  
    The legal foundation for these experiments rests with similar specialty courts, as described above.  The authorizing statutes will stand or fall on their attention to due process and right-to-trial issues, as found in their respective state constitutions.  Some of these concerns can be answered generically by framing these courts as elective alternatives to traditional jury trial, but heavily incentivizing participation, as is done in Federal Tax Court.  The advantages these systems could offer could include easier and more timely access, rapid resolution, simplified procedural rules, decreased expenses, and a reduction of anomalous, unfair verdicts.  The judges involved would become expert in this area of law, and to some extent, in the medical issues involved.  The absence of juries would allow considerable streamlining of presentations of fact, since the finder of fact would be relatively sophisticated.  Cases could be screened initially by the judge, and non-meritorious cases dismissed on motion for summary judgment.  The consistency of verdicts would result in lesser incidence of appellate review, since the inherent inconsistencies of jury behavior would be eliminated.  The larger consequence would be that overall perception of unfairness, of “lottery mentality” would decline, and confidence in the legal system would improve.
    Concerns over multiple potential problems have been advanced, largely by the trial bar.  These include loss of rights to jury trial, which can be addressed by elective participation, as above.  They contend also that a specialized court will become narrow, and not reflective of the public view and common good, which perspective juries are supposed to provide.  They contend, possibly correctly, that concerns over access are not addressed by merely changing he venue, and that all barriers now in place will remain.  They argue that in light of the large numbers of victims who are not now served, efforts which do not address this will merely be an extra layer of administration, and therefore wasteful.  They argue that the tendency to dismiss suits will rise, and that possibly meritorious suits will fare more poorly when facing a specialty bar on motion for summary judgment.  The argument fails against the fact that alternative access to traditional courts would remain an option, but they are likely correct that it is more likely that suits based on non-mainstream theories of causality will have larger barriers to proceeding on the merits.  Finally, and most correctly, such a scheme does essentially nothing to deter malpractice beyond what the current regime does, and given the miserable failure of the system as it is, any solution ought to address this aspect also.  Patient advocates also note, and probably correctly, that the market-driven barrier of requiring a substantial amount of money in controversy, before access is worthwhile, will not change under Medical Courts.  It may be true that the decreased expense of neutral experts, and the shorter time frames involved may lower the practical limits somewhat, but the primary driver will remain the motivation of the lawyer by the contingency fee system.  This will continue to favor the high-dollar cases, and offer no comfort to the walking wounded.  States might address this by instituting mandatory ADR at lower levels of damages, which might improve access overall, but this is unknown.
    A likely result of Medical Courts to be anticipated will be the fact that more of the cases will proceed to trial.  Currently, the expense and threat of trial motivates many settlements.  Under a specialty court scheme, with outcomes more predictable, and the jury wild card not in play, we may expect more parties to allow the cases to go to final judgment.  There may be more motivation for plaintiffs to settle, and less for defendants, but the net effect is unknown.  One outcome may be that the net administrative costs of the system may actually be higher, though the cost per trial will almost certainly go down.
    Though most efforts will occur on a state level, Congress has shown some interest in encouraging this activity.  There is very little likelihood that Congress will assign jurisdiction over malpractice to the federal courts. Congress may, however, induce states to create medical court, or institute other specific reforms, by tying federal funds receipt by states to adoption of the desired reforms.  Such an effort occurred in 2004, with the introduction of H.R. 4280 in the 108th Congress.  The Help Efficient, Accessible, Low-cost Timely Healthcare (HEALTH) Act of 2004 proposed to reduce statutes of limitations, cap non-economic damages, disallow joint and several liability, limit attorney fees to a set schedule of percentages, allow collateral source discounts in settlements, require a showing of fraud for punitive damages to apply, and require periodic payments for large settlements.  The bill proposed these changes as a minimum alternative, not to supersede state laws which provide greater protections for health care providers.  Congress asserted its Commerce Power within the language of the Act, stating that the current malpractice insurance affects interstate commerce.  This bill was passed by the House, but never reached to floor of the Senate for a vote.  A bill specifically encouraging medical courts, the Fair and Reliable Medical Justice Act, S. 1337 was introduced in the Senate in the 109th Congress.  It offered grants to states to develop alternative courts, which would “restore reliability to the medical justice system by fostering alternatives to current medical tort litigation that promote early disclosure of health care errors and provide prompt, fair, and reasonable compensation to patients who are injured.” [6] This bill met a similar fate, dying in committee without action.  It was reintroduced the following session, and again failed to reach the floor for a vote.
    Meanwhile, individual states are not sitting idly by, waiting for Congress to act.  The high and rapidly rising costs of malpractice insurance in various markets have forced some types of specialties in some states into untenable positions, such that obstetricians are closing their obstetrical practices, and neurosurgeons are leaving states with unfavorable laws and malpractice climates.  In Las Vegas, Nevada, trauma surgeons in the main trauma center temporarily ceased doing trauma surgery, necessitating helicopter transfers of multiple patients out of state.  They resumed only when the Nevada legislature passed certain malpractice reform provisions the surgeons felt were indispensible.  Pennsylvania, which has a suit rate among the highest in the nation, and a recent history of large judgments, has seen physicians leaving the state.  Its legislature has directed the Joint State Government Commission “to study the feasibility of establishing an alternative to the existing liability system with regard to medical liability actions. [7] Based on this study, the legislature has further directed in a resolution that the Commission consider new systems, and specifically that it consider a medical court system. [8] A bill creating such a system was proposed, but not enacted.  Illinois and New Jersey are considering similar proposals, though none has yet been enacted. [9] These states represent only the first wave of similar efforts.  Numerous states face local shortages of various specialties, most notably OB, Trauma Surgery, and Neurosurgery.  Virginia’s and Florida’s no-fault birth injury schemes are efforts to deal with this same reality in a more limited, goal-related fashion, but as the shortages spread from the subspecialties into the broader areas of Emergency Medicine, Cardiology, etc., broader efforts will be needed.
    The concept of Medical Courts has begun to have wide discussion in various state, and by various elements of the legal and medical communities.  While the passions are high, and the vested interests vocal in their criticism, the underlying problems are severe, and unlikely to go away.  No constituency, except a small contingent of trial lawyers, is served by the current system, and no amount of spin about “protecting the rights of the injured” can take away from the bald failure of the system to do just that.  A Medical Court system, properly configured, could achieve multiple goals for multiple constituencies simultaneously, even though it would not answer all problems alone.  It could preserve and even enhance access to the courts for citizens injured by negligence.  It could render reliable and predictable judgments, based on the law, and not on the vagaries of sympathy.  It could reduce the load and backlog of the rest of the civil court system.  It could screen cases for merit, and expedite settlements for the deserving, and take the compensation from the truly negligent.  It could differentiate bad medicine from mere bad outcomes, and shift the financing of these random risks to an appropriate forum, whether accident insurance, universal health coverage, or other schemes.  It could reduce the overall expense of the system by streamlined procedures and expedited settlements.  And, it could conceivably direct the improvement of healthcare training by identifying doctors at increased risk and requiring remedial training or other action as a condition of the judgment.  No proponent can claim that Medical Courts will solve all the problems with the current system.  They may or may not address access issues.  They may have biases which are different, but not superior to the current system.  They may cause a flood of suits for lesser injuries and lesser amounts, which might be a benefit, from a patient advocacy standpoint.  They may ultimately be more costly from a governmental expenditure standpoint than the system they would supplement.  They may undercompensate the most severely injured, and neglect traditional pain and suffering related damages.  No solution needs to be comprehensive and perfect, nor can one ever be, before it qualifies as a step in the right direction.  No one can demand that no step be taken until a perfect solution is identified.  There could hardly be a wrong direction, situated as we are, in the deepest darkest center of a quagmire.  The national experiment is about to begin, and the multiple laboratories of the states will work through solutions which will change the landscape as we know it.  The perfect solution will, of course, never be reached, since all human activity is dynamic, and our needs will change dramatically, as society, medicine, and the law undergo unanticipated and amazing changes.
    

Footnotes:

[FN1].  INSTITUTE OF MEDICINE, To Err is Human:  Building a Safer Health System 37 (1999).

[FN2].  Studdert et al., Negligent Care and Malpractice Claiming Behavior in Utah and Colorado,  Medical Care Vol. 38, 2000, p. 253.

[FN3].  Weiler, P. et al.,  A Measure of Malpractice:  Medical Injury, Malpractice Litigation and Patient Compensation, 124, 1993 (cited in Sage, W., Medical Malpractice Insurance and the Emperor’s Clothes, 54 Depaul L. Rev. 463.

[FN4].  States upholding caps on pain and suffering damages include:  CA, ID, IN, KS, LA, MA, MD, MS, MN, NE, OR, VA, WV.  Caps were struck down in IL, OH, OR. See Fink, D. Notes and Comments, Best v. Taylor Machine Works, the Remittur Doctrine, and the implications for Tort Reform, 94 NW. U. L. Rev. 227, 229 (1999), and  Light, M., Note Who’s the Boss?:  Statutory Damage Caps, Courts, and State Constitutional Law, 58 Wash. & Lee L. Rev. 315, 319, 31 (2001)  (Cited in Gunnar, W., Is There an Acceptable Answer to Rising Medical Malpractice Premiums?, 13 Annals Health L. 465).

[FN5].  Gibeaut, J., The Med-Mal Divide 91 MAR A.B.A J. 39, 42 2005.

[FN6].  Reliable Medical Justice Act, S. 1518, 108th Cong. (2003).

[FN7].  S.R. 160, 187th Gen. Assem., Reg. Sess. (Pa 2003).

[FN8].  H.R. 1199, 187th Gen. Assem., Reg. Sess. (Pa 2003).

[FN9].  AB 1972, 211th Reg. Reg. Sess. (N.J. 2004;  SB 93rd Gen. Assem., Reg Sess. (Ill. 2004).



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This article was originally published in edited form in Medical Economics