Capping the Crisis: Medical Malpractice and Tort Reform

See S. 1123, 102d Cong., 1st Sess. (1991).

A collateral source refers to other means of compensation available to the plaintiff, such as medical or disability insurance.

Defensive medicine refers to procedures undertaken by a doctor specifically to avoid a future charge of malpractice. Most frequently cited as an example of this precaution is the rise in the number of caesarian sections performed. Institute of Medicine, Medical Professional Liability and the Delivery of Obstetrical Care: Vol. I 75–76 (1989). A recent estimate places the combined costs of insurance premiums, defensive medicine, and settlements at a cost of $12 to $14 billion annually. Allen K. Hutkin, Resolving the Medical Malpractice Crisis: Alternatives to Litigation, 4 J. of L. & Health 21, 22 (1989–1990).

Hubbard F. Patrick , The Physicians' Point of View Concerning Medical Malpractice: A Sociological Perspective on the Symbolic Importance of 'Tort Reform,' 23 Ga. L. Rev. 295, 300–303 (1989).

Kansas Malpractice Victims Coalition v. Bell, 757 P.2d 251, 265 (Kan. 1988).

See generally Weiler Paul C. , Medical Malpractice on Trial (1991).

A brief historical note: During the 1970s, the United States experienced what has been termed its first malpractice“crisis.”During this period, previous underwriters of malpractice insurance policies abandoned the market in response to increasing claims and decreasing profits. Premiums again began to soar in the early 1980s. As a result of rising premiums and insurers leaving the market, health care providers found it difficult to obtain insurance. See Weiler, supra note 6, at 5. See also Kansas Malpractice Victims Coalition, 757 P.2d at 254 (striking down a cap on total recovery for malpractice victims). Perhaps the most dramatic instance of this phenomenon occurred in Virginia in 1987. Following the District Court's ruling striking down a $1 million statutory cap on medical malpractice damages, and upholding an $8.3 million jury award, the leading insurance carrier withdrew from the market, leaving 140 of 600 obstetricians in the state uninsured. See Boyd v. Bulala, 647 F.Supp. 781 (W.D. Va. 1986), aff'd in part, rev'd in part, Boyd v. Bulala, 877 F.2d 1191 (4th Cir. 1989); Cynthia L. Gallup, Can No-Fault Compensation of Impaired Infants Alleviate the Malpractice Crisis in Obstetrics? 14 J. Health Politics, Pol'y & L. 691 (1989). As Weiler points out, the size and unpredictability of a few large tort awards can have a major impact on insurance premiums. Weiler, supra note 6, at 3.

See Lucas v. U.S., 757 S.W.2d 687,689 (Tex. 1988) (striking down a $500,000 cap as applied to persons “catastrophically injured by medical negligence.”Id. at 691). States which have struck down restrictions on malpractice damages include Texas, Florida, Washington, Arizona, Kansas, Oklahoma, Illinois, Ohio, North Dakota, Idaho, and New Hampshire. Some states, such as Kentucky and Wyoming, explicitly prohibit caps on damages in personal injury actions in their state constitutions. In contrast, Virginia and Maryland have followed the lead of earlier state court ruling in Indiana, Nebraska, and California in upholding their damage provision limitations. Weiler, supra note 6, at 184, n. 98.

Weiler, supra note 6, at 39–40.

“In Suits at common law…the right of trial by jury shall be preserved, and no fact tried by jury, shall be otherwise reexamined in any Court of the United States, than according to the rules of the common law.”U.S. Const. amend. VII.

883 F.2d 1155 (3rd Cir. 1989).

Id. at 1162. Compare Boyd v. Bulala, 877 F.2d 1191, 1196 (4th Cir. 1989) (reasoning that if the legislature could completely abolish a cause of action without violating the Seventh Amendment, then it could properly limit damages recoverable) and Franklin v. Mazda Motor Corp., 704 F.Supp. 1325, 1331 (D. Md. 1989) (upholding Maryland's general damage limitation statute and concluding that capping the damages was merely another shaping of the law well within the bounds of the legislature's traditional powers and prerogatives.).

376 S.E.2d 525 (Va. 1989).

Kansas Malpractice Victims v. Bell, 757 P.2d 251, 258 (Kan. 1988).

Id. See also, Sofie v. Fibreboard Corp., 771 P.2d 711 (Wash. 1989) (invalidating a cap on noneconomic damages because it violated the state constitution's jury trial provision).

Throughout the opinion, Etheridge adopts a deferential stance towards the legislature's attempt to alleviate the perceived threat to medical services. Kansas Malpractice Victims, on the other hand, stresses that the Bill of Rights exists“to protect the rights of a brain-damaged baby, a quadriplegic farmer or business executive, and a horribly disfigured housewife who is a victim of medical malpractice. They are not there to see that the will of the majority is carried out, but to protect the rights of the minority.”757 P.2d at 258.

“No State shall…deprive any person of life, liberty, or property without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.” U.S. Const. amend. XIV, §1.

There are two aspects to due process: procedural due process, which guarantees notice and an effective opportunity to be heard, and substantive due process, which protects a person's property from unfair governmental interference or taking.

Courts use different standards to determine whether a statute comports with the Equal Protection Clause. If the regulation involves a“fundamental right”or affects a“suspect class”(such as people of a particular race or religion) the court will use a“strict scrutiny”standard. If such interests are not implicated the court will defer to legislative decisions as long as there is a“rational basis”for the statute's enactment.

Boyd v. Bulala, 877 F.2d 1191, 1197 (4th Cir. 1989). In Etheridge, the Supreme Court of Virginia applied a similar analysis regarding Virginia's constitution.

The court declined to review this issue in Fein v. Permanente Medical Group, 695 P.2d 665 (Cal. 1985) appeal dismissed, 106 S.Ct. 214 (1986) (upholding California's statutory cap on damages).

576 N.E.2d 765, 770–71 (Ohio 1991).

Id. Some state courts have also rejected these statutes on equal protection grounds. See, e.g., Carson v. Maurer, 424 A.2d 825, 836–838 (1980) ($250,000 cap violated New Hampshire's constitutional guarantee of equal protection); Arneson v. Olson, 270 N.W.2d 125, 135–36 (N.D. 1978) ($300,000 cap violated equal protection guarantee of North Dakota Constitution).

See, e.g., Morris , 576 N.E.2d at 772 (permitting reduction of damages by collateral benefits); Fein v. Permanente Medical Group, 695 P.2d 665 (Cal. 1985) (permitting statutory modification of traditional collateral source rule).

See generally Davis S. Starr, Does Malpractice Litigation Deter Substandard Care? 37 Medical Trial Technique Quarterly 360 (1991).