AN OVERVIEW OF MEDICAL
MALPRACTICE AND THE TORT REFORM DEBATE
Cecilia
Loh
April 23,
2003
I. The Basics
A. Why There Is Medical Malpractice Litigation
B. Legal Definitions
C. What Constitutes Malpractice
A. Historical Landmarks
B.
Current
Situation
A.
Key
Players
B.
Is
There a New Crisis?
C.
Who
Is To Blame?
D.
What
Should Be Done?
* Note: This chapter does not cover the following
topics in detail: medical error,
litigation threat and quality of care, defensive medicine and
increased cost of care,
legal controversy over standard of care criteria (ex. role of
informed consent)
I. THE BASICS
A. Why There Is Medical Malpractice Litigation
On
February 7, 2003, 17-year-old Jesica Santillan became the victim of a tragic
mistake that made the headlines as medical blunder of the year. She received a heart and lung transplant
from a donor who had an incompatible blood type—a glaring error on the part of
her medical team at Duke University Hospital and the donor organizations
involved. This error was unforgivable
for the severity of its consequences and the fact that it could have been
prevented. Normally, throughout the
whole transplant process from donor-recipient matching to the actual surgery,
this type of error is averted by checks for compatibility at several
levels. In Jesica’s case, the blood
type incompatibility passed unidentified through all checkpoints leading up to
her surgery, and the last checkpoint fell through when her surgeon failed to
personally confirm compatibility due to his assumption that the donor
organization would not have offered incompatible organs. As soon as the immunology lab at Duke
notified Jesica’s surgical team of the mistake, they did their best to remedy
the situation by immediately initiating treatment to prevent organ rejection
and by performing a second transplant with compatible organs on February 20,
2003. Unfortunately, all their efforts
could not make up for the mistake, and Jesica died on February 22, 2003. Mistakes of this magnitude are relatively
rare, although the exact number of preventable deaths and injuries caused by
medical error is debatable. What is
certain is that medical error does occur frequently enough to warrant attention
and quality-improvement efforts.
Medical malpractice litigation has been referred to as one such
naturally deterrent effort. In the
United States, where patients increasingly view themselves as consumers of
health care as a product, malpractice litigation is practically seen as a right
for those who are dissatisfied with the quality of care they receive.
Many health professionals and the public have a
general, but hazy, understanding of what medical malpractice is and how the law
defines it. Laying out the basics of
legal jargon will help the reader have a better understanding of the tort
reform debate. All of the information
presented below can be found in most 1st year tort law textbooks,
such as “Tort Law and Alternatives: Cases and Materials” by Marc A. Franklin
and Robert L. Rabin (New York, Foundation Press, 2001). A simple definition of tort is a civil wrong
that usually arises outside of a formal agreement. Negligence is a broad category of tort law, and it is basically
careless behavior that places an unreasonable risk of injury on another
person. Malpractice is the failure of
professionals, such as physicians, lawyers, and engineers, to conform to the
standards of competence and skill set by their respective professions. In sum, medical malpractice is generally
considered to be a special case of negligence, where a medical professional
causes unreasonable risk of harm to a patient due to his failure to meet an
established standard of care. Medical
malpractice suits can be filed against various health professionals and
entities, including physicians, dentists, nurses, and hospitals, but this
chapter will focus on physicians because they are at the heart of the current
tort reform debate.
C. What Constitutes Malpractice
Proof of
Negligence
To prove that any type of negligence has occurred, medical or non-medical, the burden of proof is on the plaintiff to show that the elements of duty, breach, causation, and harm are present in his or her case. For the specific case of medical malpractice, a plaintiff must produce evidence of the following: (1) that the named defendant(s) has a legal duty to act in a certain manner toward the plaintiff i.e. a doctor-patient relationship which requires the doctor to meet a certain standard of care for his patients (2) that the defendant failed to conform to that standard (3) that there is a close, causal link between the defendant’s inappropriate behavior and the patient’s injury and (4) that the patient suffered actual harm. The major issue in medical malpractice cases is how the “standard of care” is determined.
Standard of Care
Meeting the legal standard of care does not usually require the guarantee of successful outcomes, but rather the adherence to a certain level of skill that a “minimally qualified member” in good professional standing would exhibit. This level is established by experts in the same field as the defendant, in accordance with the ruling from Sheeley v. Memorial Hospital 710 A.2d 161 (Supreme Court of Rhode Island, 1998). Furthermore, a physician who practices as a specialist must perform at the level of competence that is appropriate for his respective specialty. For example, a cardiologist would be measured against a minimally qualified cardiologist and not an internist or a general practitioner. Ultimately, most juries base their understanding of minimally acceptable care on the competing testimonies of expert witnesses, physicians who are hired by both parties involved. One might question how a jury can come to a well-informed verdict when the standard of care definition essentially boils down to Dr. X’s opinion versus Dr. Y’s opinion. Physicians certainly question whether they can receive a fair trial when juries are largely made up of citizens who have no training in complex medical issues. Regardless, when a jury determines that a defendant has failed to meet the acceptable standard and the plaintiff has provided sufficient evidence of the other 3 elements of negligence, the defendant is declared guilty of medical malpractice. Depending on the state in which the case is tried, various types and amounts of damages, or monetary rewards, can be given to the plaintiff. The two main types of damages are compensatory damages, awarded to compensate the plaintiff for the injury, and punitive damages, awarded to punish the defendant for medical negligence and to deter him from future misconduct.
Today’s concept of malpractice is derived from
English legal practice dating back to the 1700s. The word itself comes from mala praxis, a legal concept defined
in Sir William Blackstone’s Commentaries on the Laws of England. Blackstone was the first to apply the idea
of professional misconduct to medical practitioners by including the following
in his definition of mala praxis:
injuries caused by a physician’s or an apothecary’s “neglect or
unskillful management” in violation of the trust placed in that practitioner.1
This definition of mala praxis
was adopted by the early American settlers who read Blackstone’s book, although
medical malpractice litigation did not become a significant phenomenon in the
United States until the mid-1800s.
Around 1840, the number of medical malpractice
lawsuits brought to U.S. courts exploded; from 1840 to 1860, the number of
malpractice suits reviewed by state appellate courts increased by a whopping
950%.2 Several factors have
been identified as contributors to this eruption, one of the more important
being “marketplace professionalism.”3 Marketplace professionalism arose due to a cultural climate of
anti-elitism, during which popular opinion forced governing authorities to
allow virtually anyone to enter the professional arena. In such an environment, doctors found
themselves “hustling” for patients in a market that offered a wide variety of
healers, ranging from quacks to legitimate practitioners. The lack of national standards left patients
with litigation as their only recourse for holding providers accountable for
their actions. At the same time,
lawyers eagerly jumped on medical malpractice litigation as the new opportunity
for career advancement. Initially, the
authentic physicians almost welcomed malpractice litigation, thinking that it
would rectify the abuse of patients by illegitimate practitioners. However, the idealism of these physicians
quickly dissolved into disillusionment as patients and lawyers directed their
attacks toward physicians with true credentials and as they appeared more
motivated by personal gain than real injury.
This first “malpractice crisis,” as medical professionals refer to it,
marked the beginning of the adversarial relationship between law and medicine.
Following the initial surge of lawsuits in the 1840s,
medical malpractice litigation became a firmly entrenched phenomenon in the
United States, and the medical world experienced several more “crises”
throughout the 1900s. The mid-1970s and
mid-1980s have been identified as such because of the upward surge in frequency
of claims and in size of malpractice awards that occurred during these
years. Tort reform in the area of
medical malpractice has its roots in the 1970s peak. Comprehensive national statistics are hard to find for the years
prior to 1990, but estimates are available from professional associations and
insurance companies. In the crisis year
of 1975, an American Medical Association (AMA) Task Force estimated that 14,000
claims were brought against physicians.4 For a comparative perspective, the number of lawsuits filed in
the four years preceding 1975 was four times greater than the number filed
during the preceding thirty-five years.5 Another study estimated that the number of claims for all physicians
doubled from 3.1 per 100 physicians before 1976 to 6.7 per 100 physicians after
1976.6 It is interesting to
note that physicians from all specialties were not equally accused of
misconduct, and the inferences that can be made from inter-specialty differences
will be discussed later in this chapter.
Similar to current trends, those who had the highest risk of being sued
were physicians specializing in obstetrics-gynecology (OB-gyn), surgery, and
radiology. As an example, 15.5 out of
every 100 OB-gyns incurred a claim, compared to 6.7 out of 100 physicians
overall.7 Regardless of the
specialty, doctors viewed the malpractice situation in 1975 as a desperate one
that required serious change.
Accompanying the rise in number of malpractice claims
filed was an increase in the size of awards doled out by trial juries. The same AMA Task force determined that
excluding million dollar verdicts, juries awarded average amounts of $171,000,
$261,000 and to malpractice plaintiffs in 1975 and 1980, respectively.8 The combined influence of more claims
and larger awards for these claims caused many private insurance companies to
begin a mass exodus out of the medical insurance market. A sudden disappearance of insurers from the
market coincided with the inflation of malpractice premiums by 100 to 750%
within the year of 1975 alone.9
Some physicians were abruptly deprived of malpractice coverage when
their insurers disbanded while others were forced to leave their practice by unaffordable
malpractice premiums. At the upper end,
physicians like OB-gyns and family practitioners who provided obstetrical care
paid $125,000 a year in insurance premiums, and the percentage of OB-gyns in
the United States who stopped delivering babies ranged from 25% to 90%.10 Such conditions spurred early attempts
at tort reform in 1975, including limitation of jury awards, implementation of
pretrial screening processes, and modifications of trial proceedings.
Malpractice claims and awards
continued a general trend of growth during the remaining decades of the 20th
century. By the mid-1980s, one estimate
placed the level of claims at 16.3 per 100 physicians with geographic and
inter-specialty variation;11 the median size of awards was estimated
to be $400,000.12 Departing
from the overall trend, the number of claims and the price of malpractice
premiums seemed to level off in the early to mid-90s. A 1995 report by St. Paul Fire & Marine Insurance Co., the
nation’s largest malpractice insurer for physicians, revealed that the company
did not increase their physicians’ premiums for a two and a half year stretch.
The vice-president of the company attributed this stability in premiums to
stability in amount of claims filed, pointing out that the 1992 rate of 14.1
claims per 100 physicians was very comparable to the 1993 rate of 14.6 claims
per 100 physicians.13
Nevertheless, the upward trend of malpractice awards continued with a
marked 50% increase in median awards from 1997 to 1998.14 Premiums soon followed suit with spikes of
30-50% in the most litigious states; by 2002, OB-gyns in Florida took first
place for paying the highest annual premiums at $200,000 and neurosurgeons in
New York ranked a close second at $150,000.15 Proponents of tort reform point to such
statistics as evidence that a current crisis is underway, threatening the
ability of physicians to provide high-quality care at low cost.
Other estimates from the National Practitioner Data
Bank (NPDB) seem to paint a different picture, although a direct comparison of
claims frequency cannot be made using the bank’s information. Created by the Health Care Quality
Improvement Act of 1986, the NPDB became operational in 1990 with the purpose
of acting as a “flagging system” that could identify potentially problematic
practitioners.16 The two
main types of information recorded by the NPDB are malpractice payments made
for individual practitioners and certain adverse licensing or disciplinary
actions taken against individual practitioners. Data on individual practitioners is currently available only to
licensing and credentialing authorities, while general statistics are available
to the public at http://www.npdb-hipdb.com/npdb.html. From 1990 to 2001, the total number of
reports, including malpractice payments and adverse licensure/disciplinary
actions, made for all practitioners was 291,520, or an average of 1.63 per
practitioner.17 Malpractice
payments accounted for 73% of these reports,18 and of these
malpractice payments, the mean amount paid for physicians was $209,272 and the
median amount $100,00.19
Comparing states, New York, California, and Texas had the highest number
of payment reports for physicians and dentists, while Alaska, South Dakota, and
North Dakota had the lowest.20
Highest median payments were recorded for Illinois, Washington, DC, and
Pennsylvania; lowest payments were made in California, Idaho, and Utah.21 Examining the most recent data on 2001
alone, the national mean for payments made on behalf of physicians was $270,854
and the national median $135,000.22
This information from the NPDB appears to contradict the assertion of a
current malpractice crisis, although data is not yet available for 2002 or 2003
and as mentioned before, a direct comparison of claims frequency estimates
cannot be made.
The conflicting statistics on
malpractice trends for the last decade are just a hint of the escalating battle
between the legal and medical professions.
Today, in 2003, the controversy revolves around tort reform. The center of the controversy is H.R. 4600,
a tort reform bill making its way
through the United States Congress.
Passions run high on both sides of the debate, and the mutual mistrust
that is ingrained in both professions becomes obvious in the arguments they put
forth. Other key players include the
American Tort Reform Foundation (ATRF), the American Medical Association (AMA),
the American Trial Lawyers’ Association (ATLA), consumer groups like the Public
Citizen, and medical insurance companies.
Generally, the lawyers and patient consumer groups take a stand on one
side of the issue, pitted against the doctors and medical insurers on the other
side. All are engaged in debate and
political activism regarding the following three points that are relevant to
tort reform. First, is there really a
new malpractice crisis? Second, who is
to blame for this crisis, assuming there is one? Third, what should be done?
A resounding YES comes from the physicians and their
supporters. The ATRF asserts that the
tort system is more expensive in the U.S. than in any other industrialized
nation. Statistics like the $200,000
yearly premium for OB-gyns and $150,000 for neurosurgeons are quoted as proof
that premiums have risen to outrageous levels.23 They contend that these uncontrolled premiums are making it
unaffordable for doctors to practice medicine, forcing them to abandon the
medical profession in many states. Not
only are physicians suffering from devastating career setbacks, but patients
are also suffering from decreased access to care as progressively more doctors
“go out of business.” One example is
Nevada, where 60 specialists at the University Medical Center in Las Vegas went
on a strike in the summer of 2002, causing the trauma center to be shut down
for 10 days. Another is Pennsylvania,
where all 12 orthopedic surgeons at one hospital walked off the job. Overall, the AMA asserts that 18 states are
already in a crisis situation, while another 26 are showing “problem signs”
that could develop into a crisis.24
Physicians have decided to take political action under such intolerable
circumstances by holding walkouts and rallies in New Jersey, Florida,
Mississippi, West Virginia, and Nevada, as well as by lobbying Congress.
Lawyers and their supporters say NO
to the question of whether there is a crisis for physicians. They contend that the extremely high
premiums affect only a small percentage of all physicians—those who practice
higher-risk specialties such as obstetrics and neurosurgery. Furthermore, some cite statistics that
suggest malpractice insurance constitutes a very small percentage of the
average physician’s revenue, only 3.2% according to one estimate.25 Consumer groups argue that the real crisis
is the prevalence of negligent care that causes unnecessary suffering, and even
death, to patients. A landmark report
made by the Institute of Medicine in 2000 estimated that over 44,000 people die
in hospitals because of medical error.26 Another figure frequently quoted by the media is that medical
negligence causes up to 80,000 deaths and 300,000 injuries annually.27 Although this statistic is often
portrayed inaccurately by reporters and/or consumer groups who go so far as to
claim that “doctors kill” these patients,28 the fact remains that a
significant amount of preventable injury does occur in the medical
setting. For a more accurate
understanding of the death and injury statistic, refer to the original Harvard
Medical Practice study, which is listed under “Further Reading” at the end of
this chapter.
Regarding the ever-growing malpractice premiums, doctors and insurance companies blame runaway jury awards. By 1996, the median award for a medical malpractice case was estimated to be $568,000.29 During 1997 alone, one study found that the number increased by almost 50%.30 During 1999, another study reported that the median jury award increased 43%.31 Million-dollar awards or settlements are no longer a rarity; where they were handed out in only 1 of 50 cases ten years ago, they now occur in 1 out of 12 cases, according to the Physician Insurers Association of America (PIAA).32 The president of the PIAA likens malpractice litigation to a lottery for lawyers because the chance of winning is small, but the potential rewards are huge.33 Besides unreasonable jury awards, physicians pin the blame on patients and lawyers, whom they accuse of being more money-hungry than justice-seeking. Several studies in the medical literature are cited to support their argument that patients do not usually file claims against physicians who deliver sub-standard care. Instead, a physician’s risk of litigation appears to be correlated more with factors like specialty and gender, which are unrelated to quality of care.34, 35 In fact, it has even been suggested that the “better” a physician is, the more likely he is to face a lawsuit.36 The combined evidence has led physicians to bitterly conclude that their career is vulnerable to attack not only by unscrupulous lawyers, but also by the very patients they serve.
The Lawyers’ Perspective
Lawyers and consumer groups point
the finger at the insurance industry, claiming that they have periodically
raised premiums in response to the economy and their own business
decisions. Maxwell Mehlman, director of
the Law-Medicine Center at Case Western Reserve University, has been quoted
several times for his assertion that insurance companies lower premiums in
order to be competitive, but then they must increase them in order to make up
for the losses incurred by malpractice awards.37 Such price wars occurred among medical
insurance companies in the 1990s; toward the end of the decade, the stock
market took a downturn and insurance companies faced losses in their
investments as well. On this side of
the argument, the combined deficit from price gouging and investment losses has
been cited as the driving force behind growing malpractice premiums, not
excessive jury awards.
In discussing current proposals for reform, the
reader must keep in mind that all states have different regulations regarding
malpractice litigation and insurance.
Some states have enacted major reforms ever since the crisis of 1975,
while others have not. On the national
level, President George W. Bush has taken sides with physicians and medical
insurers in the tort reform debate, advocating the limitation of non-economic
awards at $250,000 as the main solution to the malpractice crisis. His administration supports reform efforts
like H.R. 4600. H.R. 4600 would
implement reforms such as limits on awards and contingency fees, reduced
statutes of limitations, and modified collateral source rules (a brief
explanation of these reforms is given below).38 It is similar to California’s Medical Injury Compensation
Reform Act (MICRA), which became law in 1975 and is regarded as the model for
national tort reform. Some of the
changes instituted by MICRA were capitation of non-economic awards at $250,000,
imposition of a sliding scale on attorney contingency fees, enacting periodic
payments, and modification of the statute of limitations.
Tort reform advocates claim that the California model
has been successful at reining in out-of-control malpractice premiums. Their evidence is a statistic published by
the National Association of Insurance Commissioners, which shows a net increase
in California premiums of about 170% since 1976, compared to a net national
increase of over 500%.39
Naturally, critics of tort reform disagree, claiming that the halt in
growing premiums did not occur until the state regulated the insurance industry
years later.40 Furthermore,
they cite a study by the Center for Justice & Democracy (CJD) as undeniable
proof that passing tort law restrictions does little to decrease premium
increases. The fight has turned ugly
with personal attacks like the CJD’s executive director accusation that the AMA
has shamelessly stooped to the level of greedy insurance corporations rather
than standing up for patients’ interests.41
Popular reform measures that are being debated by
federal and state lawmakers are the following:
- Capitation of non-economic awards: Non-economic awards are commonly
referred to as pain and suffering awards. This type of award is given to
compensate a plaintiff for the personal suffering he
endures due to
medical negligence.
It does not include economic awards, which are
given to compensate for loss of wages. Both non-economic and economic
awards are considered compensatory damages.
- Periodic payments: Making award payments at regular intervals rather than
in one lump sum.
- Limit on contingency fees: A contingency fee is the percentage of the
malpractice award that goes to the winning
attorney.
Change in
statute of limitations: Statute of limitations refers to the amount
of time—after medical injury has occurred—that a
defendant has to legally
file a claim.
Limit on punitive damages: Punitive
damages refers to the monetary amount
that is awarded to punish or deter the
defendant from future misconduct.
This monetary award is given separately
from compensatory damages.
Modification
of collateral source rule: The
collateral source rule prevents
defendants from producing evidence that a plaintiff
will receive
reimbursement from some other source for the damages
presented in the
case, such as personal insurance. Under this rule, plaintiffs may receive
double compensation for their injury.
Over the past several decades, one or more of these
reforms have been enacted in over half of the states in the U.S. For specific arguments supporting and
contesting each one of these proposals, the reader may again refer to the
references listed at the end of this chapter.
The raging debate facing the 108th Congress is whether the
Bush proposal of capping the limit of non-economic damages to $250,000 is the
most effective way of handling the malpractice crisis. Supporters of H.R. 4600 hail capitation of
awards as the solution, while opponents argue the need for more comprehensive
reforms that would regulate the insurance industry and enforce stricter consequences
for negligent physicians. As
legislators continue to debate the issue, the fight will inevitably grow
fiercer and the rift between physicians and lawyers wider. Both professions will probably continue to
view their profession as the noble one, struggling against the corrupt enemy
embodied by the other. The challenge
for the public health professional is to understand both sides of the debate
and then shift the focus from solving the “malpractice crisis” to the real
heart of the matter—how to reduce medical error. This monumental task will require further investigation to reveal
how mistakes typically occur and to find innovative ways of preventing
them. Ultimately, the improvement of
medical care through reduction of error will only be attainable via cooperative
efforts among physicians, lawyers, and health professionals who are committed
to serving the patients’ best interests.
References
1 Mohr
JC. American medical malpractice
litigation in historical perspective.
JAMA 2000;283:1731-1737.
2 Ibid. JAMA. 2000;283:1732.
3 Ibid. JAMA. 2000;283:1732.
4 Edwards
KS. The malpractice crisis: a national
perspective. The Ohio State
Medical
Journal. 1986;82:641-645.
5 Gray J. Here’s looking at malpractice: How did it ever come to this?
Medical
Economics. 1998;75:104-106, 109-110, 113-114, 116.
6 Adams
EK and Zuckerman S. Variation in the
growth and incidence of
medical
malpractice claims. Journal of
Health Politics, Policy and Law.
1984;9:475-488.
7 Adams and
Zuckerman. Variation. Health
Politics, etc.
8
Edwards. Malpractice
crisis. Ohio State Medical Journal,etc..
9 Curran
WJ. Medical malpractice claims since
the crisis of 1975: Some good
news
and some bad. NEJM. 1983;309:1107-1108.
10 Edwards.
Malpractice crisis. Ohio
State Medical Journal, etc.
11 Sloan RA and Bovbjerg RR. Medical Malpractice: Crisis, Response, and
Effects.” Health Insurance Assoc. of America
Research Bulletin, May
1987.
12 “Malpractice: Awards bounce upward again.” Medical Economics.
1996;73
(June 10):37.
13 Japsen, B.
Malpractice claims remain stable.
Modern Healthcare.
1995;25
(Jan
9, 1995):18.
14 1998: a year when malpractice awards
mushroomed. Medical Economics.
2000;77(July 10):26.
15 Korcok M. US
malpractice premiums soar again. Canadian
Medical
Association
Journal. 2002;166(April 30):1195.
16 Oshel RE, Croft T, and Rodak J. The National Practitioner Data Bank: the
first
4 years. Public Health Reports. 1995;110:383-394.
17 NPDB 2001 annual report, Table 1 in Appendix. http://www.npdb-
hipdb.com/pubs/stats/2001%20NPDB%20Annual%20Report.pdf. Accessed on
4/14/03.
18 NPDB 2001 annual report, Table 2 in Appendix. http://www.npdb-
hipdb.com/pubs/stats/2001%20NPDB%20Annual%20Report.pdf. Accessed on
4/14/03.
hipdb.com/pubs/stats/2001%20NPDB%20Annual%20Report.pdf. Accessed on
4/14/03.
20 NPDB 2001 annual report, Table 6 in Appendix. http://www.npdb-
hipdb.com/pubs/stats/2001%20NPDB%20Annual%20Report.pdf. Accessed on
4/14/03.
21 NPDB 2001 annual report, Table 9 in Appendix. http://www.npdb-
hipdb.com/pubs/stats/2001%20NPDB%20Annual%20Report.pdf. Accessed on
4/14/03.
22 Ibid.
23 Korcok. US
premiums soar again. CMAJ.
24 Map of America’s Liability Crisis.
http://www.ama-assn.org/ama/pub/category/7861.html Accessed on
4/23/03.
25 USA Today, March 5, 2003, Final edition, News pg.
1A, “Special report: Hype
outraces facts in malpractice debate,” by Peter Eisler, Julie Appleby, and Martin
Kasindorf.
26 National Academy Press, “To Err is Human” (2000), Executive Summary at 2.
27 Rice B. Do doctors kill 80,000 patients a year? Medical Economics.
1994;71:46-56.
28 Ibid.
29 Gray J. Here’s looking at malpractice, Medical
Economics, 1998.
30 1998: a year when malpractice awards mushroomed. Medical Economics.
2000;77(July 10):26.
31 The Associated Press State & Local Wire, November
24, 2002, BC cycle,
State
and Regional, “Insurance companies blamed for rising malpractice
rates”
by Andrew Welsh-Huggins, Columbus, OH.
32 USA Today, March 5, 2003, “Special report by Eisler, Appleby and Kasindorf.
33 Ibid.
34 Taragin MI, Karns ME, Trout R, and Carson JL. Physician demographics
and the risk of medical malpractice. The American Journal of Medicine.
1992;93:537-542.
35 Taragin MI, Sonnenberg FA, Karns ME, Trout R, Shapiro S, and Carson JL.
Does physician performance explain inter-specialty differences in malpractice
claim rates? Medical Care. 1994;32:661-667.
36 Ely JW, Dawson JD, Young PR, Doebbeling BN, Goerdt CJ, Elder NC, and
Olick RS. Malpractice claims against family physicians: Are the best
doctors sued more? The Journal of Family Practice. 1999;48:23-30.
37 The
Associated Press, November 24, 2002, “Insurance companies blamed…”
by
Welsh-Huggins, Columbus, OH.
38 Congressional Budget Office Cost Estimate.
http://www.appwp.org/documents/cboestimatehr4600ec.pdf
Accessed on 4/23/03.
39 Business Insurance, January 27, 2003, Pg. 1,
“Malpractice reform heats up;
Doctors’
insurance costs, losses attracting state and federal attention,” by
Roberto
Ceniceros.
40 The Recorder, February 13, 2003, NEWS; Vol. 2; No.
13-2003; Pg. Hechler,
“Trial
lawyers declare war against tort reform,” by David Hechler.
41 “AMA issues bogus “study” – ignores insurance
industry’s sole responsibility
for
causing premium crisis for doctors.”
http://www.commondreams.org/news2002/0618-06.htm. Accessed
on
4/15/03
Further
Reading
Books
De Ville, Kenneth Allen. Medical malpractice in nineteenth-century
America:
Origins
and legacy. New York, NY: New York University Press, 1990.
Werth, Barry.
Damages: One family’s legal
struggles in the world of medicine.
New York, NY: Simon & Schuster, 1998.
Howard, Phillip K. The Death of Common Sense: How law is
suffocating America.
Random
House, 1995.
Journal articles
Harvard Medical Study I
Brennan TA, Leape LL, Laird
NM, Hebert NM, Localio L, Lawthers AG, Newhouse JP,
Weiler
PC, and Hiatt HH. Incidence of adverse
events and negligence in
hospitalized
patients. New England Journal of
Medicine. 1991;324:370-376.
Harvard Medical Study II
Leape LL, Brennan TA, Laird
N, Lawthers AG, Localio AR, Barnes BA, Hebert L,
Newhouse
JP, Weiler PC, and Hiatt HH. The nature
of adverse events in
hospitalized
patients. New England Journal of
Medicine. 1991;324:377-384.
Harvard Medical Study III
Localio AR, Lawthers AG,
Brennan TA, Laird NM, Hebert LE, Peterson LM, Newhouse
JP,
Weiler PC, and Hiatt HH. Relation
between malpractice claims and adverse
events
due to negligence. New England
Journal of Medicine. 1991;325:245-
251.
Liang BA. Error in medicine: Legal impediments to U.S. reform. Journal of Health
Politics,
Policy and Law. 1999;24:27-58.
Websites
The American Tort Reform
Association http://www.atra.org/
The Center for Justice &
Democracy http://www.centerjd.org/
The Public Citizen http://www.citizen.org/
Premium Deceit
Study http://www.centerjd.org/press/stories/01-09-17.htm
The American Medical Association http://www.ama-
assn.org/ama/pub/category/7861.html