Liability Reform Should Make Patients Safer: “Avoidable Classes of Events” are a Key Improvement

Bovbjerg R. R. Miller R. H. Shapiro D. W. , “Paths to Reducing Medical Injury: Professional Liability and Discipline vs. Patient Safety-and the Need for a Third Way,” Journal of Law, Medicine & Ethics 29 (2001): 369–380.

See, e.g., Meyers A. R. , “‘Lumping It’ – The Hidden Denominator of the Medical Malpractice Crisis,” American Journal of Public Health 77 (1987): 1544–1548 and Localio A. R. , “Relation Between Malpractice Claims and Adverse Events Due to Negligence,” N. Engl. J. Med. 325 (1991): 245–251 (fewer claims than injuries); National Practitioner Data Bank, 2003 Annual Report Rockville, MD: Health Resources and Services Administration, at <http://www.npdb-hipdb.com/pubs/stats/2003_NPDB_Annual_Report.pdf> (lower levels of private and public discipline than liability claims) (last visited June 25, 2005).

Kohn L. T. Corrigan J. M. Donaldson M. S. , eds., (for the Institute of Medicine's Committee on Quality of Health Care in America), To Err Is Human: Building a Safer Health System (Washington, DC: National Academy Press, 2000) originally released November 1999, <http://books.nap.edu/html/to_err_is_human/exec_summ.html> (last visited June 28, 2005).

Leape L. L. Berwick D. M. , “Five Years after To Err Is Human: What Have We Learned?” JAMA 293 (2005): 2384–90. See also Altman D. E. Clancy C. Blendon R. J. , “Improving Patient Safety – Five Years after the IOM Report,” N. Engl. J. Med. 351 (2004): 2041–3 (one third of survey respondents have experienced medical error in their family, want better protection).

E.g., Zwillich T. , “Scant Progress Seen on Cutting Medical Errors,” Reuters Health, November 4, 2004, at <http://www.yourhealth-matterstoday.com/1162831.html> (last visited June 10, 2005); see also sources in supra note 4.

E.g., Albert T. , “Malpractice Awards Pushing Insurance Premiums Higher,” American Medical News, March 5, 2001; see generally Bovbjerg R. R. , “Malpractice Crisis and Reform,” Clinics in Perinatology 32, no. 1 (2005): 203–233, and sources cited therein.

Blendon R. J. “Views of Practicing Physicians and the Public on Medical Errors,” N. Engl. J. Med. 347 (2002): 1933–40; Gallagher T. H. , “Patients' and Physicians' Attitudes Regarding the Disclosure of Medical Errors,” JAMA 289 (2003): 1001–7.

Cited in Bovbjerg R. R. , “Promoting Quality and Preventing Malpractice: Assessing the Health Security Act,” Journal of Health Politics, Policy & Law 19, no. 1 (1994): 207–216.

Pocincki L. S. Dogger S. J. Schwartz B. P. , “The Incidence of Iatrogenic Injuries, in U.S. Dep't. of Health Education and Welfare,” Report of the Secretary's Commission on Medical Malpractice (Washington, DC: USDHEW, 1973), Appendix, 50–70; Mills D. H. Boyden J. S. Rubsamen D. S. , Report on the Medical Insurance Feasibility Study (San Francisco: Sutter Publications, 1977 [sponsored jointly by the California Medical Association and California Hospital Association]), summarized in Mills D. H. , “Medical Insurance Feasibility Study: A Technical Summary,” Western Journal of Medicine 128 (1978): 360–65; Brennan T. A. , “Incidence of Adverse Events and Negligence in Hospitalized Patients: Results of the Harvard Medical Practice Study I,” N. Engl. J. Med. 324 (1991): 370–76; Thomas E. J. , “Incidence and Types of Adverse Events and Negligent Care in Utah and Colorado,” Medical Care 38 (2000): 261–71.

E.g., Weiss R. , “Thousands of Deaths Linked to Medical Errors” Washington Post, November 30, 1999, at A1; “Medical Errors: Improving Quality of Care and Consumer Information,” before the Subcommittees on Health and Environment and Oversight and Investigations of the Committee on Commerce and the subcommittee on Health of the Committee on Veterans' Affairs, House of Representatives, One Hundred Sixth Congress, Second Session, February 9, 2000, Commerce Serial No. 106–90, Veterans' No. 106–29, available at <http://veterans.house.gov/hearings/schedule106/feb00/2-9-00/news.htm> (last visited June 27, 2005); Quality Interagency Coordination Task Force, “Doing What Counts for Patient Safety: Federal Actions to Reduce Medical Errors and their Impact,” Report to the President on Medical Errors February 2000, available at <http://www.quic.gov/report/errors6.pdf> (last visited June 23, 2005).

Bovbjerg R. R. , “Medical Malpractice on Trial: Quality of Care Is the Important Standard,” Law and Contemporary Problems 49 (1986): 321–48. These three goals subsume all those traditionally enumerated by tort jurists and scholars, though other nomenclature may be used. Recently, some theorists have proposed other functions-e.g., that personal injury claims alert underperforming regulatory agencies of dangerous products and activities, that case-by-case jury decisions develop social consensus about acceptable risks and minimum precautions, that lawsuits satisfy a social need for blame finding; Sugarman S. D. , “A Century of Change in Personal Injury Law,” California Law Review 88 (2000): 2403–36. Such functions serve the same broad goals of deterrence and justice.

Havighurst C. C. Tancredi L. R. , “Medical Adversity Insurance – A No-Fault Approach to Medical Malpractice and Quality Assurance,” Milbank Memorial Fund Quarterly 51 (1974): 125–168; Bovbjerg R. R. , “Medical Malpractice: Folklore, Facts, and the Future,” Annals of Internal Medicine 117 (1992): 788–791; Studdert D. M. Mello M. M. Brennan T. A. , “Medical Malpractice,” N. Engl. J. Med. 350 (2004): 283–292.

Mello M. M. Brennan T. A. , “Deterrence of Medical Errors: Theory and Evidence for Malpractice Reform,” University of Texas Law Review 80 (2002): 1595–1637. There is weak and conflicting evidence that automobile tort liability may make driving safer, but none for medical care. See discussion in Bovbjerg R. R. Sloan F. A. , “No Fault for Medical Injury: Theory and Evidence,” University of Cincinnati Law Review 67 (1998): 53–123. The most elaborate attempt to demonstrate deterrence in medical care came in a thorough study of New York hospital experience. The initial researchers concluded that higher liability exposure was associated with lower rates of adverse outcomes, but their results failed to attain statistical significance in any of the many specifications of their statistical models, and so appeared in a book chapter rather than in the peer reviewed literature, Weiler P. C. , A Measure of Malpractice: Medical Injury, Malpractice Litigation, and Patient Compensation (Cambridge, MA: Harvard Univiversity Press, 1993): Chapter 6. After a subsequent series of re-analyses, a subset of investigators also did not seek publication, until telling the story in supra note 12, Mello and Brennan. It is notable that the similar empirical studies of hospital records found similar injury rates across four states, each with a rather different tort-law regime, and that hospitals seem to have differed substantially within a state, even though the fundamental substantive tort law as well as tort reform legislation applies statewide. See Mills ; Brennan ; Thomas , all supra note 10.

Taragin M. I. , “The Influence of Standard of Care and Severity of Injury on the Resolution of a Medical Malpractice Claim,” Annals of Internal Medicine 117 (1992): 780–4.

Appendix C of Kohn et al, IOM, supra note 3, consists of a 26-page chart of numerous studies, although most popular accounts cite Brennan Thomas , supra note 10.

Bovbjerg R. R. Raymond B. , Patient Safety, Just Compensation and Medical Liability Reform (report for Roundtable, “Creating a Tort System to Support Improved Patient Safety,” sponsored by the Kaiser Permanente Institute for Health Policy, the Milbank Memorial Fund, and the Reforming States Group, January 2003), at <http://www.kpihp.org/publications/briefs/patient_safety.pdf> (last visited June 10, 2005); Studdert D. M. , “Medical Malpractice,” N. Engl. J. Med. 350 (2004): 283–92.

Sloan F. A. , Suing for Medical Malpractice (Chicago: University of Chicago Press, 1993); accord, Sugarman, supra note 12.

See, e.g., Gibson R. Singh J. P. , Wall of Silence: The Untold Story of the Medical Mistakes that Kill and Injure Millions of Americans (Washington, DC: Lifeline Press, 2003): At 213 [quoting anonymous patient family members].

Bovbjerg 2005 (crisis), supra note 6; Hofmann M. A. , “Med mal insurance line could be improving: Study,” Business Insurance, posted on June 9, 2005 1:10 PM CST at <http://www.businessinsurance.com/cgi-bin/news.pl?newsId=5746> (last visited June 23, 2005).

Kohn , IOM, supra note 3; Miller R. H. Bovbjerg R. R. , “Efforts to Improve Patient Safety in Large, Capitated Medical Groups: Description and Conceptual Model,” Journal of Health Politics, Policy and Law 27, no. 3 (2002): 401–440; Wachter R. M. Shojania K. G. , Internal Bleeding: The Truth behind America's Terrifying Epidemic of Medical Mistakes (New York: Rugged Land, 2004).

See discussion at notes 66–85 infra [reform 1, more disclosure].

Anonymous hospital resident quoted by Wachter and Shojania, id. at 207.

Bovbjerg supra note 1; Wachter Shojania , supra note 21: At chapter 16, are particularly vehement about the unfortunate byproducts of liability.

Berwick D. M. , “Big Issues in the Next Ten Years of Improvement,” Presentation at IHI 13th Annual National Forum on Quality Improvement in Health Care, Boston, MA: Institute for Healthcare Improvement, December 12, 2001. [Unpublished, formerly available on IHI website].

O'Leary D. , “Patient Safety: Instilling Hospitals with a Culture of Continuous Improvement,” Testimony [by President of Joint Commission on Accreditation of Healthcare Organizations] before the Senate Committee on Governmental Affairs, June 11, 2003, at <http://www.jcaho.org/news+room/on+capitol+hill/index.htm> (last visited June 23, 2005). See Patient Safety and Quality Improvement Act, H.R.663, S.720 (108th Congress); Senate Rpt.108–196, at <http://frwebgate.access.gpo.gov/cgi-bin/getdoc.cgi?dbname=108_cong_reports&docid=f:sr196.108.pdf> (last visited June 23, 2005); House Rpt.108–028, at <http://frwebgate.access.gpo.gov/cgi-bin/getdoc.cgi?dbname=108_cong_reports&docid=f:hr028.108.pdf> (last visited June 23, 2005). The House and Senate have passed different versions; the Senate has named conferees, and final consideration awaits appointments by the House.

E.g., JACHO (Joint Commission on Accreditation of Healthcare Organizations), “Health Care at the Crossroads: Strategies for Improving the Medical Liability System and Preventing Patient Injury,” White Paper, February 2005, at <http://www.jcaho.org/news+room/press+kits/tort+reform/medical_liability.pdf>(last visited June 23, 2005); Kempner M. , “Tort: Doctors' Apologies Covered in Georgia Bill,” Atlanta Journal-Constitution , February 13, 2005, available at <http://www.ajc.com/news/content/business/0205/13sorry.html> (last visited June 23, 2005).

Corrigan J. M. , eds., “Liability: Patient-Centered and Safety-Focused, Nonjudicial Compensation,” chapter 5 in Corrigan J. M. , eds., Fostering Rapid Advances in Health Care: Learning from Systems Demonstrations (Washington, DC: Institute of Medicine, Committee on Rapid Advance Demonstration Projects, November 2002), available at <http://www.nap.edu/books/0309087074/html/> (last visited June 23, 2005); JCAHO, supra note 26. The American College of Physicians supports tort reform but also experimentation with interventions going beyond conventional tort reform, e.g., ACP, “Reforming the Medical Professional Liability Insurance System, A Position Paper, 2003, at <http://www.acponline.org/hpp/liability_ins.pdf> (last visited June 23, 2005).

Bovbjerg and Raymond, supra note 16.

Lenzer J. Solomon R. , “The Malpractice Quagmire: Which Way Out?” ACEP News, May 2003 [American College of Emergency Physicians] (accessed online November 30, 2004 from now-proprietary site); Garfunkel W. G. , “Malpractice: Can No-Fault Work?” Medical Economics, June 4, 2004; Brennan T. A. Howard P. K. , “Heal the Law, Then Health Care,” Washington Post, January 25, 2004.

The American Medical Association's “Healthcare Advocacy Agenda” lists medical liability reform first, by which is meant caps on awards and other tort reforms. See <http://www.ama-assn.org/ama/pub/category/12842.html> (last visited June 23, 2005).

Blendon , supra note 7.

JCAHO (Joint Commission on Accreditation of Healthcare Organizations), Patient Rights and Organization Ethics, Standard RI.1.2.2 , in Comprehensive Accreditation Manual for Hospitals (effective July 1, 2001), available at <http://www.jcrinc.com/subscribers/perspectives.asp?durki=2973&site=10&return=2897> (last visited June 23, 2005); Lamb R. M. , “Hospital Disclosure Practices: Results of a National Survey,” Health Affairs 22, no. 2 (2003): 73–83.

See Weingart S. N. Iezzoni L. I. , “Looking for Medical Injuries Where the Light Is Bright,” JAMA 290 (2003): 1917–9.

See Kohn , IOM, supra note 3, at chapters 6, 95–96. Some Institute of Medicine committee members strongly supported some form of “no fault” compensation as a way to promote disclosure and safety, e.g., Berwick D. , “Testimony before the Subcommittee on Health of the Committee on Veteran's Affairs and the Subcommittee on Health and the Environment and the Subcommittee on Oversight and Investigations of the Committee on Commerce,” U.S. House of Representatives, February 9, 2000, available at <http://veterans.house.gov/hearings/schedule106/feb00/2-9-00/DBerwick.htm> November 31, 2004 (last visited June 23, 2005). A different IOM committee recommended experimentation with non-fault, nonjudicial compensation. See supra note 28.

Bovbjerg 2005 (Crisis), supra note 6.

This conclusion is based on the opinion of experts and movement leaders rather than on longitudinal data. See sources cited in supra note 3.

On JCAHO activities, see, e.g., O'Leary , supra note 9; on Leapfrog, see, e.g., Eikel C. Delbanco S. , “John M. Eisenberg Patient Safety Awards. The Leapfrog Group for Patient Safety: Rewarding Higher Standards,” Joint Commission Journal on Quality and Safety 29 (2003): 634–9 and group's homepage <http://www.leapfroggroup.org> (last visited June 23, 2005).

Chase G. Reveal E. C. , How to Manage in the Public Sector (Reading, MA: Addison-Wesley Publishing, 1983).

Bovbjerg R. R. , “Patient Safety and Physician Silence,” Journal of Legal Medicine 25 (2004): 505–516.

Localio A. R. , “Identifying Adverse Events Caused by Medical Care: Degree of Physician Agreement in a Retrospective Chart Review,” Annals of Internal Medicine 125 (1996): 457–64; Thomas E. J. , “The Reliability of Medical Record Review for Estimating Adverse Event Rates,” Annals of Internal Medicine 136 (2002): 812–6, erratum at 137 (2002): 147.

See Weingart Iezzoni , supra note 33, at 1919 concluding “Developing and validating a robust set of measurement tools is essential to move patient safety information out of the shadows and into the light.”

Schoenbaum S. C. Bovbjerg R. R. , “Malpractice Reform Must Include Steps to Prevent Medical Injury,” Annals of Internal Medicine 140 (2004): 51–53.

Gibson Singh , supra note 18, at 203, passim.

See Blendon , supra note 7.

See generally Kohn , IOM, supra note 3; reported improvements range from administration of pharmaceuticals, e.g., Kaushal R. Shojania K. G. Bates D. W. , “Effects of Computerized Physician Order Entry and Clinical Decision Support Systems on Medication Safety: A Systematic Review,” Archives of Internal Medicine 163 (2003): 1409–16, to accuracy in radiology, e.g., Espinosa J. A. Nolan T. W. , “Reducing Errors Made by Emergency Physicians in Interpreting Radiographs: Longitudinal Study,” British Medical Journal 320 (2000): 737–740.

See Symposium on “Statistical Lives,” Law and Contemporary Problems 40, no. 4 (1976): 1–245.

See Bovbjerg R. R. Berenson R. A. , “Enterprise Liability in the 21st Century,” in Medical Malpractice and the U.S. Health Care System: New Century, Different Issues, Sage W. M. Kersh R. eds., (New York: Cambridge University Press, forthcoming 2005).

The landmark Illinois decision expanding hospital liability in 1965 was based upon state licensing regulations, accreditation standards, and the hospital's own bylaws calling for oversight of attending physicians, Darling v. Charleston Community Memorial Hospital, 33 Ill.2d 326, 211 N.E.2d 253 (1965), certiorari denied, 383 U.S. 946 (1966). Expansion of guidelines for care, once thought useful as a defense against unreasonable legal claims, in practice has more often served as the basis of claims, Hyams A. L. , “Practice Guidelines and Malpractice Litigation: A Two-Way Street,” Annals of Internal Medicine 122 (1995): 450–5.

Mello M. M. Studdert D. M. Brennan T. A. , “The Leapfrog Standards: Ready to Jump from Marketplace to Courtroom?” Health Affairs 22, no. 2 (2003): 46–59.

Law is predisposed to allow discovery of relevant evidence, and evidence of prior circumstances and behavior is arguably relevant in a number of ways. See generally Bovbjerg R. R. Shapiro D. W. , “Protecting Error-Reporting Systems in Medicine from Legal Discovery,” Washington, DC: Report to the Institute of Medicine, Committee on Quality of Health Care in America, July 1999, revised and published as chapter 6, “Protecting Voluntary Reporting Systems from Legal Discovery,” 94–113 in Kohn , IOM, supra note 3.

Schoenbaum Bovbjerg , supra note 42.

Studdert , 2005 (Malpractice), supra note 12; Schoenbaum Bovbjerg , supra note 42.

Pace N. M. Capping Non-Economic Awards in Medical Malpractice Trials: California Jury Verdicts under MICRA. (Santa Monica, CA: RAND Institute for Civil Justice, July 2004), at <http://www.rand.org/publications/MG/MG234/MG234.pdf> (last visited June 23, 2005); Studdert D. M. “Are Damages Caps Regressive? A Study of Malpractice Jury Verdicts in California,” Health Affairs 23, no. 4 (2004): 54–67.

Bovbjerg 2005 (Crisis), supra note 6.

It has been argued, for example, that disclosure of problems and promotion of patient safety remains difficult in California 30 years after tort reform there. Bovbjerg R. R. , “Patient Safety and Physician Silence,” Journal of Legal Medicine 25 (2004): 505–516. See also Hyman D. A. Silver C. , “The Poor State of Health Care Quality in the US: Is Malpractice Liability Part of the Problem or Part of the Solution?” Cornell Law Review (2005) (forthcoming).

Mello M. M. Studdert D.M. Brennan T. A. , “The New Medical Malpractice Crisis,” N. Engl. J. Med. 348 (2003): 2281–2284.

Bovbjerg Raymond , supra note 16.

See, e.g., Joint Commission Hails Senate Passage of Patient Safety Bill, JCAHO Press Release, Oakbrook Terrace, IL July 23, 2004, available at <http://www.jcaho.org/news+room/news+release+archives/nr_7_23_04.htm> (last visited June 23, 2005).

Bovbjerg Raymond , supra note 16; Studdert D. M. Brennan T. A. , “No-Fault Compensation for Medical Injuries: The Prospect for Error Prevention,” JAMA 286 (2001): 217–23.

Bovbjerg 2005 (Crisis), supra note 6.

Cf. Berenson R. A. Kuo S. May J. H. , “Medical Malpractice Liability Crisis Meets Markets: Stress in Unexpected Places, Washington, DC: Center for Studying Health System Change,” Issue Brief No. 68, September 2003, available at <http://www.hschange.org/CONTENT/605/> (last visited June 23, 2005) (problems with tort even in California, seen as tort reform ideal).

Bovbjerg Raymond , supra note 16.

Such institutional responsibility, or “enterprise liability,” is in accordance with the systems needed for systems safety efforts. The U.S. health system is for now moving away from inpatient care and integration of hospital and physician services, however. Large change, such as thoroughgoing liability reform might help promote systems in health care. See Bovbjerg Berenson , supra note 47.

Space does not permit discussion of every reform that might affect either; for example, administrative, fault-based compensation and medical courts are omitted here.

Katz J. , The Silent World of Doctor and Patient (New York: Free Press, 1984); Gibson Singh , supra note 18.

Gibson Compare Singh , supra note 18 with Weissman J. S. , “Error Reporting and Disclosure Systems: Views from Hospital Leaders,” JAMA 293, no. 11 (2005): 1359–66

Banja J. , “Moral Courage in Medicine – Disclosing Medical Error,” Bioethies Forum 17, no. 2 (2001): 7–11; National Patient Safety Foundation, “Talking to Patients about Health Care Injury: Statement of Principle,” November 14, 2000, available at <http://www.npsf.org/html/statement.html> (last visited June 23, 2005).

Wu A. W. Cavanaugh T. A. McPhee S. J. Lo B. Micco G. P. , “To tell the Truth: Ethical and Practical Issues in Disclosing Medical Mistakes to Patients,” Journal of General Internal Medicine 12 (1997): 770–5.

American Medical Association Council on Ethical and Judicial Affairs and Southern Illinois University School of Law, Code of Medical Ethics, Patient Rights Standards RI. 2.90 & RI 12, and Current Opinions of the Council on Ethical and Judicial Affairs, Opinion E-8.12: Patient Information (1994), available at <www.ama-assn.org/ama/pub/category/8497.html> (last visited June 23, 2005).

Katz , supra note 66, Gibson Singh , supra note 18.

JCAHO, supra note 32 (Standard). This newer standard builds upon requirements evolved since 1996 that hospitals conduct “root cause” safety analysis of “sentinel events,” that is, severe unanticipated events, see, e.g., JCAHO, “Our Commitment to Patient Safety,” March 2004, available at <http://www.jcaho.org/general+public/patient+safety/index.htm#Sentinel%20Event%20Policy> (last visited June 23, 2005); see generally American Society for Healthcare Risk Management, “Disclosure of Unanticipated Events: The Next Step in Better Communication with Patients,” (part 1 of 3) Chicago, IL: American Hospital Association, May 2003, available at <http://www.hospitalconnect.com/ashrm/resources/files/Disclosure.Pt1.pdf> (last visited June 23, 2005).

LeGros N. Pinkall J. D. , “The New JCAHO Patient Safety Standards and the Disclosure of Unanticipated Outcomes,” Journal of Health Law 35, no. 2 (2002): 189–210; Brott L. F. Thomas K. , “Disclosure of Unanticipated Outcomes,” Health Systems Risk Management Advisor (2001), at <www.pronational.com/news/hsriskrv/outcomediscl4Q2001.htm> (last visited June 24, 2005).

Gallagher T. H. Waterman A. D. Ebers A. G. Fraser V. J. Levinson W. , “Patients' and Physicians' Attitudes Regarding the Disclosure of Medical Errors,” JAMA 289, no. 8 (2003): 1001–1007.

Specific quotation from Rice B. , “Medical Errors: Is Honesty Ever Optional?” Medical Economics 79, no. 19 (2002): 63–6, 72; similar findings came from physician focus groups, Gallagher T. H. , supra note 73.

E.g., California Evidence Code, Division 9, Chapter 3, §1160(a); Cohen J. R. , “Legislating Apology: The Pros and Cons,” University of Cincinnati Law Review 70 (2002): 819–895; Cohen J. R. , “Toward Candor after Medical Error: The First Apology Law,” Harvard Health Policy Review 5, no.1 (2004): 21–24.

American Society for Healthcare Risk Management of the American Hospital Association, “Disclosure: What Works Now and What can Work Even Better,” (part 3 of 3) (February 2004), available at <http://www.hospitalconnect.com/ashrm/resources/files/Disclosure.Part3.0204.pdf> (last visited June 24, 2005).

Boyte Compare W. R. , “Casey's Legacy: Finding Generosity when Admitting to an Error in Judgment,” Health Affairs 20, no.2 (2001): 250–4 (young doctor forgiven by parents after apology in wake of child's death) with Wachter Shojania , supra note 20, at 296 (apologizing “profusely” did not prevent lawsuit nearly two years later).

Witman Compare A. B. Park D. M. Hardin S. B. , “How Do Patients Want Physicians to Handle Mistakes? A Survey of Internal Medicine Patients in an Academic Setting,” Archives of Internal Medicine 156, no. 22 (1996): 2565–9 (12% of patients would sue if informed promptly, versus 20% if uninformed) with Mazor K. M. Simon S. R. Yood R. A. Martinson B. C. Gunter M. J. Reed G. W. Gurwitz J. H. , “Health Plan Members' Views about Disclosure of Medical Errors,” Annals of Internal Medicine 140, no. 6 (2004): 409–18 (in all but one scenario, “percentage of patients indicating that they would seek legal advice was relatively high even with full disclosure”).

May M. L. Stengel D. B. , “Who Sues Their Doctors? How Patients Handle Medical Grievances,” Law & Society Review 24 (1990):105–120; Vincent C. Young M. Phillips A. , “Why do People Sue Doctors? A Study of Patients and Relatives Taking Legal Action,” Lancet 8913, no. 343 (1994): 1609–13; Hickson G. B. Clayton E. W. Githens P. B. Sloan F. A. , “Factors that Prompted Families to File Medical Malpractice Claims Following Perinatal Injuries,” JAMA 267, no. 10 (1992): 1359–63.

Kachalia A. Shojania K. G. Hofer T. P. Piotrowski M. Saint S. , “Does full Disclosure of Medical Errors Affect Malpractice Liability? The Jury is Still Out,” Joint Commission Journal on Quality and Safety 10 (2003): 503–11. See also Mazor K. M. Simon S. R. Gurwitz J. H. , “Communicating with Patients about Medical Errors: A Review of the Literature,” Archives of Internal Medicine 164, no. 15 (2004):1690–7 (“insufficient empirical evidence to support conclusions about the disclosure process or its consequences”).

Kraman S. S. Hamm G. , “Risk Management: Extreme Honesty may be the Best Policy,” Annals of Internal Medicine 131, no.12 (1999): 963–7.

Morath J. Hart T. , “Partnering with Families: Disclosure and Trust,” Spotlight on Solutions: Patient Safety Initiative 2000 (Chicago, IL: National Patient Safety Foundation, 2001): 247–251, available at <http://www.npsf.org/download/Morath.pdf> (last visited June 24, 2005); Schyve P. M. , “Address to National Summit on Medical Errors and Patient Safety Research, Senior Vice President of JCAHO,” September 11, 2000, at <http://www.jcaho.org/news+room/on+capitol+hill/schyve_statement+.htm> (last visited June 24, 2005); “Medical Mistakes: Tell Patients, Families Say Risk Managers in National Survey” QRC Advisor 16, no. 11 (2000): 12.

Lamb R. M. Studdert D. M. Bohmer R. M. Berwick D. M. Brennan T. A. , “Hospital Disclosure Practices: Results of a National Survey,” Health Affairs 22, no. 2 (2003): 73–83.

Zimmerman R. , “Doctors' New Tool To Fight Lawsuits: Saying ‘I'm Sorry’; Malpractice Insurers Find Owning Up to Errors Soothes Patient Anger: “The Risks Are Extraordinary,” Wall Street Journal, May 18, 2004, at A1; Liang B. A. , “A System of Medical Error Disclosure,” Quality & Safety in Health Care 11 (2002): 64–68; see also Bovbjerg R. R. , “Patient Safety and Physician Silence,” Journal of Legal Medicine 25 (2004): 505–516.

O'Connell J. , “Offers That Can't Be Refused: Foreclosure of Personal Injury Claims By Defendants' Prompt Tender of Claimants' Net Economic Losses,” Northwestern University Law Review 77 (1982): 589–632; O'Connell J. , “Neo-No-Fault Remedies for Medical Injuries: Coordinated Statutory and Contractual Alternatives,” Law and Contemporary Problems 49 (1986): 125–141; O'Connell J. Bryan P. B. , “More Hippocrates, Less Hypocrisy: ‘Early Offers’ as a Means of Implementing the Institute of Medicine's Recommendations on Malpractice Law,” Journal of Law and Health 15, no. 1 (2000–2001): 23–51.

The originally proposed time period of 90 days has been extended to 120; see sources cited ibid.

O'Connell J. , quoted in “HHS Report Endorses Tort Reform Concept that could Speed Resolution of Medical Malpractice Claims,” University of Virginia News, August 22, 2002, at <http://www.virginia.edu/topnews/releases2002/hhs-aug-22-2002.html> (last visited June 24, 2005).

ASPE (DHHS, Office of the Assistant Secretary for Planning and Evaluation), Confronting the New Health Care Crisis: Improving Health Care Quality and Lowering Costs By Fixing Our Medical Liability System , Washington, DC: US Dept. of Health & Human Services/ASPE, July 24, 2002, available at <http://aspe.hhs.gov/daltcp/reports/litrefm.pdf> (last visited June 24, 2005).

Corrigan , IOM, supra note 27.

The federal model differs substantially from the early-offer approach described in text. Under the demonstration, government (defense) and claimants may both communicate their offers in confidence to a trusted intermediary. The government promises that any offer will be for its estimate of the present value of economic losses, but there is no provision for coverage of losses as they occur. If the claimant makes an overlapping offer, indicating willingness to accept the same or higher offer, the intermediary announces a settlement at the average of the two. If either chooses not to make offer, litigation proceeds, and neither side has had to reveal any perceived weakness in its case through open offers. See USDHHS, Office of the Secretary, General Counsel, Notice Regarding … Alternative Settlement Process for Certain Administrative Claims Under the Federal Tort Claims Act, Federal Register 69, no. 185 (2004): 57294–57297, Friday, September 24, available at <http://www.premierinc.com/advocacy/issues/108/04/liability/early-offers-program-0904.pdf> (last visited June 28, 2005).

See, e.g., Weiler P. C. , Medical Malpractice on Trial (Cambridge, MA: Harvard University Press, 1991); Bovbjerg Sloan supra 13; Studdert Brennan , supra note 59 JAMA (2001).

See Bovbjerg Sloan , supra note 13.

See id. at 53–85 (history of no-fault and lessons for medical no-fault from Workers Compensation and auto no-fault); for a recent restatement of the case for administrative compensation, see Studdert Brennan , supra note 60 (No-Fault JAMA).

We owe this observation to William M. Sage. Sage was a contributor to the IOM committee report that avoided “no fault” in favor of “Patient-Centered and Safety-Focused, Nonjudicial Compensation,” chapter 6 in Corrigan , IOM, supra note 27. One earlier article referred to “selective” no fault, Bovbjerg R. R. Tancredi L. R. Gaylin D. S. , “Obstetrics and Malpractice: Evidence on the Performance of a Selective No-Fault System,” JAMA 265 (1991): 2835–2842.

Many more administrative systems that cover medical injuries exist in other countries. See Studdert D. M. “Can the United States Afford a ‘No-Fault’ System of Compensation for Medical Injury?” Law & Contemporary Problems 60, no. 2 (1997): 1–34; Studdert Brennan , supra note 59, JAMA (2001).

National Childhood Vaccine Injury Act of 1986, Title III of Public Law 99–660,42 USC Sec. 300aa-1 et seq.

Health Resources and Services Administration, DHHS. National Vaccine Injury Compensation Program home page <http://www.hrsa.gov/osp/vicp/INDEX.HTM> (last visited June 24, 2005).

Mariner W. K. , “The National Vaccine Injury Compensation Program,” Health Affairs 11, no. 1 (1992): 255–65; Ridgway D. , “No-Fault Vaccine Insurance: Lessons from the National Vaccine Injury Compensation Program,” Journal of Health Politics, Policy and Law 24 (1999): 59–90.

Ridgway D. , “Disputed Claims for Pertussis Vaccine Injuries under the National Vaccine Injury Compensation Program,” Journal of Investigative Medicine 46, no. 4 (1998): 168–74.

National Vaccine Injury Compensation Program, “Post-1988 Monthly Statistics Report,” August 13, 2004, available at <http://www.hrsa.gov/osp/vicp/monthly_stats_post.htm> (last visited June 24, 2005).

Henderson J. A. , “The Virginia Birth-Related Injury Compensation Act: Limited No-Fault Statutes as Solutions to the ‘Medical Malpractice Crisis,’” in Rostow V. P. Bulger R. J. , eds., Medical Professional Liability and the Delivery of Obstetrical Care, vol. 2 (Washington, DC: IOM, 1989): 194–212; Ted-Castle T. R. Dewar M. A. , “Medical Malpractice: A New Treatment for an Old Illness,” Florida State University Law Review 16 (1988): 535–590; Heland K. V. Rutledge P. , “No-Fault Compensation for Neurologically Impaired Infants: The Virginia Experience,” Current Opinion in Obstetrics & Gynecology 2 (1992): 58–65; Academic Task Force for Review of the Insurance and Tort Systems, Medical Malpractice Recommendations (unpublished report to governor and legislature) November 6, 1987.

Bovbjerg R. R. Sloan F. A. Rankin P. J. , “Administrative Performance of ‘No-Fault’ Compensation for Medical Injury” Law and Contemporary Problems 60, no. 2 (1997): 71–115; Bovbjerg Sloan , supra note 13.

All aspects of the study were summarized in Bovbjerg and Sloan, supra note 13. Other publications included: Bovbjerg , supra note 102; Whetten-Goldstein K. , “Compensation for Birth-Related Injury: No-Fault Programs Compared with Tort System,” Archives of Pediatric and Adolescent Medicine 153, no. 1 (1999): 41–8; Sloan F. A. Whetten-Goldstein K. Hickson G. B. , “The Influence of Obstetric No-Fault Compensation on Obstetricians' Practice Patterns,” American Journal of Obstetrics and Gynecology 179, no. 3, Pt. 1 (1998): 671–6; Sloan F. A. , “No-Fault System of Compensation for Obstetric Injury: Winners and Losers,” Obstetrics and Gynecology 91 (1998): 437–443.

Studdert D. M. Fritz L. A. Brennan T. A. , “The Jury Is Still in: Florida's Birth-Related Neurological Injury Compensation Plan after a Decade,” Journal of Health Politics, Policy and Law 25 (2000): 499–526.

Joint Legislative Audit and Review Commission of the Virginia General Assembly, Review of the Virginia Birth-Related Neurological Injury Compensation Program January 15, 2003, at <http://jlarc.state.va.us/Reports/Rpt284.pdf> (last visited June 24, 2005).

See sources cited in supra notes 13, 30, 60.

See Bovbjerg Berenson , supra note 47, also discussed in note 63.

E.g., Johnson W. G. , “The Economic Consequences of Medical Injuries: Implications for a No-Fault Insurance Plan,” JAMA 267 (1992): 2487–92; Studdert , supra note 95, Law & Contemporary Problems (1997); Studdert D. M. Brennan T. A. , “Toward a Workable Model of ‘No-Fault’ Compensation for Medical Injury in the United States,” American Journal of Law & Medicine 27, nos. 2–3 (2001): 225–52.

Bovbjerg 2005 (Crisis), supra note 6; on the merits of collateral source offset, see also notes 148 & 149, infra.

Bovbjerg Sloan , supra note 14; Abraham K. S. , “Medical Liability Reform; A Conceptual Framework,” JAMA 260 (1988): 68–72.

Bovbjerg Sloan , supra note 13.

Corrigan , (IOM), supra note 27.

Havighurst Tancredi , supra note 12; Boyden J. R. Tancredi L. R. , “Identification of Designated Compensable Events (DCEs),” in American Bar Association Commission on Medical Professional Liability. Designated Compensable Event System: A Feasibility Study (Chicago, IL: ABA, 1979):11–51; Tancredi L. R. Bovbjerg R. R. , “Rethinking Responsibility for Patient Injury: Accelerated-Compensation Events, a Malpractice and Quality Reform Ripe for a Test,” Law and Contemporary Problems 54, no.2 (1991): 147–178.

In the early 1990s, the authors propose a demonstration for private contractual implementation of mandatory early offers for obstetric ACEs, but their proposal did not receive funding from the Robert Wood Johnson Foundation because at the time no actual implementation could be promised, although one HMO had agreed to participate in a “virtual” demonstration (see text at note infra 163). Bovbjerg R. R. Tancredi L. R. Heland K. V. , “Injury Monitoring, Avoidance, and Resolution: ‘ACEs’ for Quality and Malpractice Reform,” unpublished proposal to the Robert Wood Johnson Foundation, Washington, DC: The Urban Institute, August 30 1993. In early 2005, a group of researcher/reformers at the Harvard School of Public Health and Common Good were funded by the Robert Wood Johnson Foundation to develop a practical administrative compensation plan that uses the equivalent of ACEs as well. “Harvard School of Public Health and Common Good to Develop New Medical Injury Compensation System,” press release, January 10, 2005, at <http://www.hsph.harvard.edu/press/releases/press001102005A.html.html> (last visited June 24, 2005).

Tancredi Bovbjerg , supra note 113.

Tancredi L. R. Bovbjerg R. R. , “Advancing the Epidemiology of Injury and Methods for Quality Control: ‘ACEs’ as an Outcomes-Based System for Quality Assurance,” Quality Review Bulletin: Journal of Quality Assurance 18, no. 6 (1992): 201–209.

Bovbjerg R. R. , “Medical Malpractice: Folklore, Facts, and the Future,” Annals of Internal Medicine 117 (1992): 788–791.

Tancredi L. R. Bovbjerg R. R. , “Creating Outcomes-Based Systems for Quality and Malpractice Reform: Methodology of Accelerated-Compensation Events (ACEs),” Milbank Quarterly 70 (1992): 183–216; Boyden Tancredi , supra note 113.

In parallel fashion, some safety experts recommend tracking “balancing measures” to assure that changes meant to improve one aspect of safety are not causing new problems in other areas. Institute for Healthcare Improvement, Measures, Safety: General at <http://www.ihi.org/IHI/Topics/PatientSafety/Safety-General/Measures/> (last visited June 24, 2005).

Tancredi L. R. , “Identifying Avoidable Adverse Events in Medicine,” Medical Care 12 (1974): 935–943; Tancredi L. R. , “Designated Compensable Events: A No-Fault Approach to Medical Malpractice,” Law, Medicine and Health Care 10 (1982): 200–203, at 215; Tancredi Bovbjerg , supra note 118.

Ibid.

U.S. General Accounting Office, Medical Malpractice: Characteristics of Claims Closed in 1984 (Washington, DC: Government Accountability Office, April 1987, pub. no. GAO/HRD-87-55), available at <http://161.203.16.4/d2t4/132815.pdf> (last visited June 24, 2005).

E.g., Keeton R. E. , “Compensation for Medical Accidents,” University of Pennsylvania Law Review 121 (1973): 590–605.

Boyden Tancredi , supra note 113.

Tancredi Bovbjerg , supra note 118.

Danzon P. M. , Medical Malpractice: Theory, Evidence, and Public Policy (Cambridge, MA: Harvard University Press, 1985): At 217.

Danzon thus concluded, without evidence, that ACEs “would not account for a significant fraction of claims,” id. at 218.

Serious Reportable Events in Healthcare: A National Quality Forum Consensus Report (Washington, DC: National Quality Forum, March 22, 2002); Executive Summary available at <http://www.qualityforum.org/neverteaser.pdf> (last visited June 24, 2005).

Robeznieks A. , “Minnesota, Pennsylvania to Launch Error-Reporting Systems,” American Medical News, October 6, 2003, (accessed online September 24, 2004 from now-proprietary site); Mandernach D. , “A Better System for Monitoring and Preventing Medical Errors,” Minnesota Medicine 87, no. 4 (2004): 40–2.

Various routes could lead to further development, including additional research projects or national consensus panels, like the one that developed never events. Given the breadth of medical expertise contemplated by developing ACEs to cover all inpatient care or all medical care, it seems more feasible to stay with smaller research groups of experts to develop and test event lists in the context of moving to an actual demonstrations, as discussed more below.

Bovbjerg , supra note 94.

Boyden Tancredi supra note 113.

Mills supra note 11; 1978, Epstein 1978.

Bovbjerg , supra note 94.

Calabresi G. “The Problem of Malpractice: Trying to Round Out the Circle” 233–243 in Rottenberg S. , ed, The Economics of Medical Malpractice (Washington, DC: American Enterprise Institute, 1978); Epstein R. A. , Medical Malpractice: Its Cause and Cure,” 245–267 in ibid.; and Schwartz W. B. Komesar N. K. , “Doctors, damages, and deterrence,” N. Engl. J. Med. 298 (1978): 1282–1289.

Boyden Tancredi , supra note 113.

Bovbjerg , supra note 94.

Other defined events in health care have also proved feasible to operationalize, notably including the vaccine-compensation table of events and the definitions of severe neurological birth-related injuries used in Virginia and Florida.

Danzon , supra note 126, at 218.

Taragin , supra note 14.

Metzloff T. B. , “Resolving Malpractice Disputes: Imaging the Jury's Shadow,” Law and Contemporary Problems 54, no. 1 (1991): 43–131.

Bovbjerg , supra note 94.

Bovbjerg Raymond , supra note 16.

Tancredi Bovbjerg , supra note 113 offers a longer discussion.

The Special Master who resolved death claims administratively after the September 11th atrocities decided to reduce top allowances and raise the bottom, “so that there's a rough equal[ity],” University of Virginia School of Law, “9/11 Fund's Special Master Recounts Experiences,” summary of Kenneth Feinberg's lecture of September 21, 2004, webposted September 22, 2004, at <http://www.law.virginia.edu/home2002/html/news/2004_fall/feinberg.htm> (last visited June 10, 2005).

See extended discussion in Blumstein J. F. Bovbjerg R. R. Sloan F. A. , “Beyond Tort Reform: Developing Better Tools for Assessing Damages for Personal Injuries,” Yale Journal on Regulation 8, no. 1 (1991): 171–212.

See generally Bovbjerg R. R. Sloan F. A. Blumstein J. F. , “Valuing Life and Limb in Tort: Scheduling ‘Pain and Suffering,’” Northwestern University Law Review 83 (1989): 908–976 (issues in tort context). The 9–11 Special Master decided that “Everybody gets the same formula on non-economic loss.” Univiversity of Virginia, supra note 145; and the Florida infant compensation program makes allowances up to a ceiling of $100,000, almost always at that ceiling, Bovbjerg 1997, supra note 102 (no fault admin).

In practice, the main payers are non-liability sources like health and disability insurance and government programs, which provide far more compensation than tort. From this perspective, the tort system is the payer that is truly “collateral” in the sense of secondary or supportive rather than principal. See Hensler D. R. , Compensation for Accidental Injuries in the United States (Santa Monica, CA: Rand Corporation, 1991, R-3999-HHS/ICJ).

One major insurer announced in late 2004 that it would no longer pay for medical care that resulted in a “never event.” Associated Press, “Health Insurer Says It Won't Cover Mistakes,” Houston Chronicle, October 7, 2004, at B3. Snowbeck C. , “Minnesota Health Plan won't Pay Hospitals for Medical Errors: Plan begins in January,” Pittsburgh Post-Gazette, December 9, 2004, available at <http://www.post-gazette.com/pg/04344/423960.stm> (last visited June 13, 2005).

Overseas programs, notably in Sweden, routinely make individual determinations of preventability. So would all cases under a Workers Comp style administrative reform. ACE-like rules of thumb tend to emerge from repeated case adjudication. E.g., Studdert et al., supra note 108.

Tancredi Bovbjerg , supra note 113, at 152 (notes possibility of fault-based administrative agency or fault-based arbitration); see also Havighurst Tancredi , supra note 12.

Practices can readily meet existing negligence standards, yet be easy to improve. A major advantage of patient safety is that it actively seeks to make care safer, not just to avoid demonstrably substandard practices.

Cf. Cassidy J. D. , “Effect of Eliminating Compensation for Pain and Suffering on the Outcome of Insurance Claims for Whiplash Injury” N. Engl. J. Med. 342, no. 16 (2000): 1179–86 (non-fault auto reform that elimined compensation for pain and suffering was associated with lower incidence of whiplash claims and improved prognosis of whiplash injury), comment in Deyo R. A. , “Pain and Public Policy,” N. Engl. J. Med. 342, no. 16 (2000):1211–3.

The statute could be federal, but injuries are traditionally resolved under state law.

Havighurst Tancredi , supra note 12.

See discussion supra at note 111, on difficulties legislating the administrative compensation model.

Havighurst C. C. , Health Care Choices: Private Contracts as Instruments of Health Reform (Washington, DC: AEI Press, 1995).

Corrigan , IOM, supra note 27.

ERISA (the Employee Retirement and Income Security Act of 1974), preempts state law relating to employee benefit plans, a point that cannot be fully elaborated here. For a recent discussion in context of Supreme Court decision, see Jost T. S. , “The Supreme Court Limits Lawsuits against Managed Care Organizations,” Health Affairs July-December (2004 Suppl, Web Exclusives): W4-417-26.

Rolph E. S. Moller E. Rolph J. E. , “Arbitration Agreements in Health Care: Myths and Reality,” Law and Contemporary Problems 60, no. 1 (1997):153–184; Nieto M. Hosel M. , “Arbitration in California Managed Health Care Systems,” California Research Bureau, California State Library, December 2000, CRB-00-009, available at <http://www.library.ca.gov/crb/00/09/00–009.pdf> (last visited June 24, 2005).

One reviewer noted that disclosure could be motivated by a penalty on providers for meritorious cases that were not disclosed or offered compensation prior to litigation or adjudication. How accurately such legal processes determine merit of cases is open to question, especially among medical providers. Using expert ACEs as a yardstick would arguably improve consistency and acceptance of any such sanction.

This could be done in the enabling act where early-offer is established by statute. Or, if tort-based early offer used private contracts to limit recoveries after qualifying offers, providers could bind themselves to make offers for all ACEs as a way to assure fairness and win judicial approval in any litigation to invalidate early offers.

Wadlington W. , “Medical Injury Compensation. A Time for Testing New Approaches,” JAMA 265, no. 21 (1991):2861; Tancredi Bovbjerg , supra note 113, Law and Contemporary Problems (1991); Bovbjerg , supra note 114, unpublished proposal (1993).

Wachter Shojania supra note 20.

Larson A. Larson L. K. , Larson's Workers' Compensation Law , vol. 6, § 103.03 (Albany, NY: LexisNexis Matthew Bender, 2000) (requiring actual intent to harm worker for worker to sue an employer outside of workers comp), but see Delgado v. Phelps-Dodge Chino Mines, 34 P.3d 1148, 2001-NMSC-034 (S.Ct. NM) (also willful misconduct with reasonable expectation of death or serious injury), available at <http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=nm&vol=01sc-034&invol=2> (last visited June 24, 2005).

O'Connell J. , article cited in note 85 supra.

Wachter , supra note 164; Derbyshire R. C. , “What Should the Profession do about the Incompetent Physician?” JAMA 194, no. 12 (1965): 1287–90.

Ameringer C. F. , State Medical Boards and the Politics of Public Protection (Baltimore, MD: Johns Hopkins, 1999); Brennan T. A. Horwitz R. I. Dufly F. D. Cassel C. K. Goode L. D. Lipner R. S. , “The Role of Physician Specialty Board Certification Status in the Quality Movement,” JAMA 292 (2004):1038–43; Jost T. S. , “Legal Issues in Quality of Care Oversight in the United States: Recent Developments,” European Journal of Health Law 10, no. 1 (2003):11–25.

Derbyshire supra note 167; Brennan T. A. , “The Role of Regulation in Quality Improvement,” Milbank Quarterly 76, no. 4 (1998): 709–31, at 512.

E.g., Public Citizen, “Medical Malpractice Briefing Book: Challenging the Misleading Claims of the Doctors' Lobby,” Congress Watch Review, August 2004, available at <http://www.citizen.org/documents/MedMalBriefingBook08-09-04.pdf> (last visited June 24, 2005); Wolfe S. , “A Free Ride for Bad Doctors,” New York Times , March 4, 2003 [op-ed], accessible as HRG Publication #1655, at <http://www.citizen.org/publications/release.cfm?ID=7232> (last visited June 24, 2005).

E.g., Blendon , supra note 7.

The three-strikes initiative passed by 71% to 29%; the right to safety records initiative passed 81% to 19%. Florida Department of State, Division of Elections, “November 2, 2004 General Election - Official Results, Constitutional Amendment,” available at <http://election.dos.state.fl.us/elections/resultsarchive/Index.asp> (last visited June 24, 2005).

[Florida] Department of State, Initiative no. 8, “Public Protection from Repeated Medical Malpractice,” Constitutional Amendment, Article X, Section 20, in Proposed Constitutional Amendments to Be Voted on November 2, 2004, available at <http://election.dos.state.fl.us/initiatives/pdf/ProposedAmendenglish.pdf> (last visited June 24, 2005); see also, e.g., Associated Press, “Florida Passes Three-Strikes Malpractice Law,” New York Times , November 26, 2004, available at <http://www.nytimes.com/2004/11/26/national/26malpractice.html> (last visited June 24, 2005).

Initiative 4, passed in November 2004, created a “constitutional right for a patient or potential patient to know and have access to records of a health care facility's or provider's adverse medical incidents, including medical malpractice and other acts which have caused or have the potential to cause injury or death,” see sources cited in supra notes 172 and 173.

Brennan T. A. , supra note 169. See also sources cited in note 2 supra.

Premiums, including self-insurance and similar premium-like spending, totaled some $25 million in 2002, compared with $1.6 billion in medical spending. Bovbjerg , supra note 6 (clinics, 2005); the comparable figure during the last crisis era of the mid-1980s was about one percent, Posner J. R. , “Trends in Medical Malpractice Insurance, 1970–1985,” Law and Contemporary Problems 49, no. 2 (1986): 37–56.