Academic journal article Vanderbilt Law Review

Putting the Caps on Caps: Reconciling the Goal of Medical Malpractice Reform with the Twin Objectives of Tort Law

Academic journal article Vanderbilt Law Review

Putting the Caps on Caps: Reconciling the Goal of Medical Malpractice Reform with the Twin Objectives of Tort Law

Article excerpt

I. INTRODUCTION

Medical malpractice litigation is not a modern invention. Rather, it has been part of the American legal system since before the Revolution,1 and the most recent medical malpractice insurance crisis is not the first this country has known. However, losses to insurers during the earlier medical malpractice insurance crises pale in comparison to the ailments of this most recent crisis.2 Though this most recent medical malpractice insurance crisis seems to be coming to a close,3 by examining the causes of this crisis and enacting changes at present, this country may be able to avoid future crises. Of course, the first step in avoiding repetition is identifying the cause-a task that to date has eluded consensus.

There are three groups of professions involved in the debate over the causes of the medical malpractice insurance crises-physicians, insurers, and plaintiffs' attorneys. Though blame, to some degree, rests with all three of the principal actors, this Note does not focus on the source of the crisis. Instead, it primarily focuses on changes directly pertinent to the legal profession which may be able to prevent future crises.

The problem with current efforts to reform medical malpractice laws is that the effects of certain reforms do not comport with both the goal of reform and the objectives of tort law. Specifically, the goal of medical malpractice reform is to stabilize and/or reduce medical malpractice insurance premiums. However, that goal should not offend the twin objectives of tort law-deterrence and redress.4 Once the current medical malpractice debate is viewed through the lens of this conflict, the fatal flaws of the popular methods of medical malpractice reform (caps on damages and arbitration/screening panels) are exposed, while other methods of medical malpractice reform (increased regulation of the medical profession, regulation of the insurance market, imposition of certificates of merit at the pretrial stage, and alterations in the manner through which the standard of care is defined) surface as more ideal solutions to achieve both the goal of medical malpractice reform and the objectives of tort law.

This Note argues that two of the most popular proposed solutions to the medical malpractice insurance crisis, damage caps and arbitration/screening panels, are ineffective at lowering medical malpractice premiums. Furthermore, such proposed solutions distort the twin objectives of tort law, deterrence and redress. Part II of this Note analyzes several factors that led to the most recent medical malpractice insurance crisis, highlights the concerns of the professions involved, and identifies the optimal goal to be achieved by medical malpractice reform. Part III identifies and analyzes the previous "solutions" to medical malpractice insurance crises, highlighting both the strengths and weaknesses of these approaches. Part IV proposes a solution to the medical malpractice insurance crisis through the adoption of certificates of merit and the use of court appointed experts to define the standard of care for both the judge and the jury.

II. MEDICAL MALPRACTICE INSURANCE CRISES-WHERE ARE WE, How DID WE GET HERE, AND WHERE SHOULD WE BE GOING?

A. Defining Medical Malpractice

To fully understand how the structure of medical malpractice litigation can evolve into a more just and predictable system, one must first appreciate the basic differences between traditional negligence and medical malpractice. While in traditional negligence the duty not to act negligently applies among all persons regardless of their relationship to one another, the idea behind medical malpractice liability is that by undertaking the voluntary role of physician, the doctor creates a special relationship between herself and the patient.5 As a result of this voluntary undertaking, the physician is required to exercise the duty of providing medical services within the applicable standard of care. …

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