Malpractice Reforms: Are they Fair?

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Reforms within the tort system

Several reforms would leave the basic framework of the tort system intact but would alter various aspects of it. One type of reform changes the party that initially is responsible for paying all or part of a claim. This is the effect of repealing the collateral source rule and enterprise liability. Both of these are designed to reduce the costs of compensating malpractice victims. Repealing the collateral source rule seeks to do so by shifting the burden of paying a certain set of claims from

Systemic changes

The foregoing reform proposals modify various features of the tort system; however, they retain the core elements of the current tort system: liability based on causing negligent injury to patients, with causation, negligence, and the severity of injury determined case-by-case through adversarial proceedings in court, and with the facts of the cases usually decided by juries. Several reforms propose to change one or more of these core features.

One of these proposals, under which malpractice

Summary

Several proposed reforms raise such serious questions that, in terms of fairness, they seem to be nonstarters. These include abolishing joint and several liability and res ipsa loquitur, reducing the statute of limitations, capping damages, medical courts, and contracting among the parties. Other reforms might be fair depending on their details, including their effect on patient compensation.

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References (24)

  • K.S. Abraham et al.

    Enterprise medical liability and the evolution of the American health care system

    Harv Law Rev

    (1994)
  • New York Civil Practice Law and Rules 2002, §4545(c)...
  • Physician Insurers Association of America 2002. Testimony on July 17, 2002 before the Subcommittee on Health of the...
  • Federal Rules of Civil Procedure. Rule...
  • Senate Bill 281 2003. 2001–2002 Regular Session, 124th General Assembly...
  • Office of Technology Assessment 1993. U.S. Congress, Impact of Legal Reforms on Medical Malpractice Costs...
  • J. Blumstein et al.

    Beyond tort reform: developing better tools for assessing damages for personal injuries

    Yale J Reg

    (1991)
  • R.R. Bovbjerg et al.

    Public policy: valuing life and limb in tort: scheduling “pain and suffering,”

    Northwestern Univ Law Rev

    (1989)
  • Reforming the rule of joint and several liability

  • M.L. Rustad et al.

    Taming the tort monster: the American civil justice system as a battleground of social theory

    Brooklyn Law Rev

    (2002)
  • J.R. Rawls

    A theory of justice

    (1971)
  • M.L. Rustad

    Nationalizing tort law: the Republican attack on women, blue collar workers, and consumers

    Rutgers Law Rev

    (1996)
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