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

 

II.  Malpractice Trends

     A.  Historical Landmarks

B.     Current Situation

 

III. The Tort Reform Debate

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. 

           

 

B.  Legal Definitions

 

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.

 

 

II.  MALPRACTICE TRENDS

 

A.  Historical Landmarks

 

Roots and the First “Crisis” in the 1800s

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. 

 

More Crises in the Late 1900s

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. 

 

Bigger Awards and Bigger Premiums

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. 

 

B.  Current Situation

Statistics on the 80s and 90s

            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.  

 

 

III. THE TORT REFORM DEBATE

 

A.  Key Players

 

            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?

B.  Is There a New Crisis?

 

The Physician’s Perspective

 

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. 

 

The Lawyers’ Perspective

            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.

 

C.  Who Is to Blame?

The Physicians’ Perspective

 

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. 

 

D.  What Should Be Done?

 

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.   

 

19 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.   

 

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