The Constitutionality of Medical Malpractice Legislative Reform: A National Survey (original) (raw)
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Medical Malpractice Reform Measures and Their Effects
Chest, 2013
New rules and methods for medical injury dispute resolution have been launched in New Hampshire and New York, and demonstration projects are underway elsewhere. This article describes major medical malpractice reforms undertaken and proposed in recent years. Reforms are classifi ed as (1) liability-limiting initiatives favoring health-care providers; (2) procedural innovations promoted as improving dispute resolution processes, such as patient compensation funds, "sorry" laws, disclosure and early offer laws, health courts, and safe harbor laws; and (3) major conceptual reforms to move liability away from physicians to hospitals or administrative no-fault compensation systems. Empirical evidence about the practical effects of alreadyimplemented reforms, such as damage caps, is reviewed. In light of declining malpractice claim rates, heavier adverse impacts of damage caps on vulnerable groups (people who have severe injuries, who are elderly, and who are unemployed) and repeated fi ndings of state law unconstitutionality, the rationale for nationwide damage caps is questioned. Attention to innovative reform proposals such as patient compensation funds, disclosure and early offer laws, safe harbor laws, enterprise insurance and no-fault compensation systems, is encouraged.
Medical Malpractice Reform: What Works and What Doesn’t
2019
Concerns with medical malpractice liability costs have been a principal factor leading states to adopt a series of tort liability reforms. Medical malpractice premiums have been declining, creating less of a cost-based impetus for additional reforms. The most consistent empirical evidence indicating statistically significant effects of medical malpractice reforms has been for caps on non-economic damages. Damages caps reduce insurance losses and foster insurer profitability, consistent with the objective of caps. The impacts of caps are greatest for insurance companies that otherwise would have experienced the greatest losses in the state. However, caps may reduce payouts to plaintiffs, potentially reducing the funds available to cover economic losses and attorney fees. A more recent medical malpractice reform, apology laws, may have a counterproductive effect by encouraging apologies that have the unintended consequence of increasing litigation and damages payments. There is also e...
Damages Caps in Medical Malpractice Cases
The Milbank Quarterly, 2007
This article reviews the empirical literature on the effects of damages caps and concludes that the better-designed studies show that damages caps reduce liability insurance premiums. The effects of damages caps on defensive medicine, physicians' location decisions, and the cost of health care to consumers are less clear. The only study of whether consumers benefit from lower health insurance premiums as a result of damages caps found no impact. Some state courts have based decisions declaring damages caps legislation unconstitutional on the lack of evidence of their effectiveness, thereby ignoring the findings of conflicting research studies or discounting their relevance. Although courts should be cautious in rejecting empirical evidence that caps are effective, legislators should consider whether they benefit consumers enough to justify limiting tort recoveries for those most seriously injured by malpractice.
Battling a receding tort frontier: constitutional attacks on medical malpractice laws
Specialty law digest. Health care (Monthly), 1988
The author gratefully acknowledges helpful comments on issues raised in this article by his colleagues James Blumstein, Harold Levinson, and Thomas McCoy, and research assistance from Joel Tiede.-Ed. 1. See AMERicAN MED. ASS'N, SPEcIAL TASK FORCE ON PROF. LIAB. & INS., PROFESSIONAL LIABILTY IN THE '80s, REPORT I, at 3 (Oct. 1984) [hereinafter cited as AMA SPECIAL TASK FORCE REP. No. 1] ("physicians' costs for professional liability insurance protection have risen to extraordinary levels in many areas, threatening to divert some physicians out of their major specialties and barring young physicians from practicing in places or specialties where premiums are especially high."). The report goes on to state that: "Between 1975 and 1983, medical liability premiums increased by more than 80% in general." Id. at 8.
Medical Malpractice Reform and Insurer Claims Defense: Unintended Effects?
Journal of Health Politics, Policy and Law, 2007
In response to recent and past medical malpractice insurance crises, most states have implemented reforms meant to stabilize premiums and coverage availability. The importance of understanding whether these reforms implicitly affect the behavior and incentives of plaintiffs, attorneys, medical providers, and malpractice insurers in the intended way is crucial to policy makers, if they are to achieve their goal. This study specifically examines the effect of reforms on the claims defense efforts of insurers, given that defense expenses account for approximately 30 percent of malpractice premiums. Using state data for the period 1998-2002, we regress claims defense expenses against a variety of reform variables. These include seven tort reforms (noneconomic damage caps, punitive damage limits, attorney fee limits, modified collateral source rule, modified joint and several liability doctrine, mandatory pretrial screening, and statute of limitations) and two government-sponsored insurance mechanisms (joint underwriting associations and patient compensation funds). Claims defense expenses are found to be higher in the presence of noneconomic damage caps, punitive damage limits, and attorney fee limits-an unintended and counterproductive effect of reform-but are lower with mandatory pretrial screening and patient compensation funds.
International Journal of Healthcare, 2016
Background: Tort reform with caps on noneconomic damages, such as pain and suffering, has been proposed as a way of decreasing the national cost of healthcare in the United States. In this paper we measure the impact of noneconomic damage caps at the state level. Methods: Changes in the rate of paid claims are estimated using an interrupted time series design which identifies changes in trends following the implementation of an intervention. Data from the National Practitioner's Data Bank are used to create yearly trends in state malpractice claims using a linear spline model with a knot at the year that noneconomic caps were implemented to estimate the effect of the noneconomic caps. The effect of statutes of limitations are also modeled with a spline model. Finally, a difference-indifference design matches states that instituted or significantly changed noneconomic caps to states that did not. Findings: Of the fifteen states that implemented caps on noneconomic damages or significantly changed their caps since 2000, two had statistically significant differences in the absolute number of paid claims and six had significant changes to their trend of paid claims. Conclusions: Tort reforms that address caps on noneconomic damages, though facially similar, have significantly different results when implemented in individual states. Qualitative studies of the individual state policies need to evaluate how the state policies differ and why they led to different results to direct other states and the federal government as they consider similar policies.