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Volume 4 Number 1 - Fall 2011 Articles


The reform of medical malpractice litigation has been a constant refrain in legislative and academic circles for forty-five years, starting with the 1970 "crisis" in medical liability insurance. In fact, as Rob Field has noted, calls for reform go back to the 1800s. Once lawyers began to sue on behalf of injured patients, doctors began to complain. Why? Because suits (1) target high status professionals and their own deeply felt needs to be perfect; (2) inflict pain on them not only by imposed damage costs, but also by the mere fact of naming them as defendants; and (3) present a dramatic story of injury and draw attention to bad medicine, reminding everyone how dangerous medicine can be. Nothing has changed, except that medicine is far more dangerous today in the frequency of harms caused—the consequence of modern medicine's power to treat far more health care problems with powerful and invasive tools.

Patient Safety and Medical Liability: Are We at a Fork in the Road?

The Malpractice Crisis Turns 175: What Lessons Does History Hold for Reform?

The widespread perception of a medical liability crisis is anything but new. In fact, the emergence of malpractice litigation as a common feature of American jurisprudence and the sense of legal siege in the medical commuity date back more than 175 years to the 1830s. Several factors have been identified as possible causes. For the most part, these factors relate to changes in medicine and in society at large as America entered the Industrial Revolution. They can be grouped into three broad categories: advancing technology, greater standardization and oversight of practice, and expanded professional autonomy. Reform efforts to date have largely ignored this historical context. Perhaps such efforts would alleviate the perennial sense of crisis more effectively if they took these longstanding underlying features of American medicine into account. The first two factors have played instrumental roles in improving the quality of care, making them less than appealing targets for change. However, the third has led to a culture of entrepreneurship among physicians with no apparent clinical benefits. Therefore, the nature of professional autonomy, especially as it relates to the business structure of medical practice, may represent the most fruitful avenue for effectuating meaningful change in a perceived crisis that has persisted for almost two centuries.

The Patient Injury Epidemic: Medical Malpractice as a Curative Tool

The debate over medical liability is noisy, discordant, and riddled with false claims. Reform proposals have typically aimed to reduce lawyers' incentives to sue by capping noneconomic damages, reducing contingency fees, or making the case more expensive to try. Physicians and the public have been fed a drumbeat of misinfor-mation about "frivolous" litigation, which seems to mean any lawsuit against a doctor. Patients, having progressively lost access to lawyers and to full damage recovery, are forced to consider alternative dispute resolution mechanisms that offer significantly less money in forums that can often be controlled and gamed by repeat players—insurers, hospitals, or managed care organizations. Insurers support any kind of reform, particularly damage caps that reduce their exposure to claims. Politicians use the extreme outlier cases to propagandize and overstate the need for reforms, then offer up reforms that reduce the power of the trial bar. Politicians then wave the banner of cost savings that are never convincingly established. And practitioners of popular behavioral economics toy with the merits of patient waivers of their right to sue as an "efficient" approach to claims for medical injuries.

Comparative Perspectives I: French Reforms of Liability and Compensation

French Medical Malpractice Law and Policy Through American Eyes: What it Reflects About Public and Private Aspects of American Law

When examining law outside our native country, we often learn as much about our own legal and social system. This Article seeks to illuminate medical malpractice law and policy in the United States as well as in France. To this end, I analyze a major reform that France began in 2002, and situate it in relation to American law and policy.

The Perruche Case and French Medical Liability

In this Symposium on medical liability, I think it is important to devote an Article to a case that raises questions of both liability law and ethics, and to examine how society perceives the birth of a child with disabilities. In France, the Perruche case raised these issues and ignited an extremely important debate.

The Role of Insurance in Compensation for Medical Injuries since the Kouchner Act

In 2002, the French legislature reformed the country's medical liability law with the Kouchner Act (formally called the Act of March 4, 2002). This reform was the result of an assessment that liability law and private insurance as they then stood had been inadequate to compensate all victims with legitimate claims.

French Medical Malpractice Compensation since the Act of March 4, 2002: Liability Rules Combined with Indemnification Rules and Correlated with Several Kinds of Proceedings

The Act of March 4, 2002 (Kouchner Act), aimed to improve the conditions for compensation of medical accidents, taking into ac-count both the interests of patients and the concerns of doctors. The reforms were made possible by advancing the idea that "the existing system was satisfactory neither for the victims, nor for health professionals." Patients wanted to receive better compensation, equal treatment, and more rapid recovery. Health professionals felt that the courts interpreted rules in ways that expanded their liability. They expressed "growing concern" at this development, fearing a dérive à l'américaine ("a drift to the United States") and the development of "defensive" medicine, a shift percieved as deleterious to patients' interests.

Comparative Perspectives II: Australia, India, Mexico, and Japan

Australia: An Integrated Scheme for Regulating Liability for Medical Malpractice and Indemnity Insurance Martkest that Does Not Include the Goal of Improving the Safety and Quality of Health Care

The successful regulation of compensation for harms caused by medical malpractice is an important achievement in Australia. While this is a significant achievement, it is also crucial to identify the costs of this set of regulatory initiatives. This Article outlines the two major sets of initiatives that have successfully regulated claims for compensation associated with medical malpractice. The first set of initiatives has imposed limitations on a plaintiff's right to claim compensation and the amount of damages a successful plaintiff is entitled to recover. Developments in the common law have increased the effectiveness of these initiatives. The second set of initiatives has had the aim of creating an effective and prudentially sound market for medical indemnity insurance. The aim of this set of initiatives has been to ensure that medical professionals are able to purchase reasonably priced indemnity insurance policies.

A Medical Malpractice Model for Developing Countries?

For all the angst over medical malpractice litigation in developed countries like the United States, very little has been written about it in the developing world. Developing countries account for more than 80% of the world's population, but they are often an afterthought in comparative health law literature. Noteworthy comparative compilations include either very few developing countries or none at all. For example, the iconic treatise International Medical Malpractice Law by Dieter Giesen focuses mostly on wealthy, developed countries like our own. And the more recent corpus of comparative health literature published in American law reviews focuses mainly on the usual suspects — Canada, the United Kingdom, France, Germany, Japan, and Australia.

Public and Private Justice: Redressing Health Care Harm in Japan

Japanese legal structures addressing health care-related deaths and injuries rely more on public law institutions and rules than do the common-law North American jurisdictions, where private law adjudication is predominant.

This Article explores four developments in twenty-first-century Japanese health care law. The first two are in the public law sphere: criminal prose-cutions of health care personnel accused of medical errors, and a health ministry-sponsored "Model Project" to analyze medical-practice-associated deaths. The Article addresses a private law innovation: health care divisions of trial courts in several metropolitan areas. Finally, the Article introduces Japan's new no-fault program for compensating birth-related obstetrical injuries.

U.S. Perspectives on Reform: One Example of Barriers to Effective Reform

Moral Hazard: The Pros and Cons of Avoiding Data Bank Reports

Over the years, tort litigation has been the predominant mechanism for patients to seek accountability for the quality of their health care. From time to time, however, legislation has also emerged to address one or another perceived problem in health care quality — sometimes with unexpected consequences. This Article addresses one such statute and the adverse consequences it has come to exhibit.