Elephants, Blind Sharpshooters, Golddiggers, and Beyond: The Prospects for Constructive Tort Reform (Part 1 of A 2-Part Series)

      The Healthy Americans Act (S. 334), introduced on January 18, 2007 by Senator Ron Wyden (D-Oregon) and under consideration by the Senate Finance Committee at this writing, calls for bonus payments to states that change their medical malpractice laws. To physicians who see insurance premiums rising and hear alarming tales of frivolous suits, renegade juries, and colleagues in some specialties relocating or even leaving practice, this proposed legislation might look like blessed relief—had another measure, funding demonstration projects to foster alternatives to tort litigation, not already appeared in the previous session. The Fair and Reliable Medical Justice Act (S. 1337), co-sponsored by Senators Michael Enzi (R-Wyoming) and Max Baucus (D-Montana) in June 2005, died in committee as the 109th Congress closed up shop; at this writing, the senators reportedly plan to bring up another version in the current Congress. A succession of other bills over recent years, often reiterating the same basic concepts, have taken aim at malpractice damages: H.R. 4600 in 2002, H.R. 5 in 2003 and 2005, H.R. 4280 and 4279 in 2004. Not one has become law.
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        • Kaminski J.L.
        Medical malpractice insurance legislation. 2006 (June 28, Available at: Accessed May 8, 2007.)
        • American Medical Association
        Medical liability reform – now! A compendium of facts supporting medical liability reform and debunking arguments against reform. 2006: 26 (July 19, Available at: Accessed April 30, 2007.)
      1. Kaminski, op. cit., and National Conference of State Legislatures. Medical malpractice tort reform: 2006 state introduced legislation. Nov. 2, 2006. Available at: Accessed May 8, 2007.

        • Studdert D.M.
        • Mello M.M.
        • Brennan T.A.
        Medical malpractice.
        N Engl J Med. 2004; 350: 283-292
        • Hersch J.
        • O’Connell J.
        • Viscusi W.K.
        Evaluation of early offer reform of medical malpractice claims: final report. U.S. Department of Health and Human Service, Washington, D.C2006 (June. Available at: Accessed May 8, 2007.)
        • Epstein R.
        Contractual principle versus legislative fixes: coming to closure on the unending travails of medical malpractice. 54.
        DePaul L Rev. 2005; 503
        • Nordman E.
        • Cermak D.
        • McDaniel K.
        Medical malpractice insurance report: a study of market conditions and potential solutions to the recent crisis. National Association of Insurance Commissioners, Kansas City, KS2004
      2. The percentage of overall malpractice premium costs that ultimately reach injured patients is uncertain, though some estimates place it in the 15-20% range (Wears RL, personal communication). One commonly cited figure for the proportion of monies in tort actions nationwide reaching plaintiffs, in the form of either awards or claims settled out of court, is 22% for economic loss compensation, with 54% consumed in transactional costs and the remaining 24% going for noneconomic losses (Tillinghast-Towers Perrin, U.S. Tort Costs: 2003 Update–Trends and Findings on the Costs of the U.S. Tort System, 2003, p. 17 [ 2003_Tort_Costs_Update/Tort_Costs_Trends_2003_Update.pdf]). However, these figures cover the tort system as a whole instead of separating medical malpractice claims from other categories such as asbestos-related cases; overall liability is consistently an order of magnitude larger than the medical malpractice component. Medical malpractice costs are analyzed separately for aggregate costs and annual growth – malpractice tort costs have grown at 11.9% annually, compared with 9.5% annually for all U.S. tort costs since 1975 – but not for the breakdown of economic loss, noneconomic loss, and transactional “friction.” In the more recent analysis of 1,452 closed malpractice claims (Studdert DM, Mello MM, Gawande AA, et al. Claims, errors, and compensation payments in medical malpractice litigation. N Engl J Med 2006;354:2024-2033), administrative friction consumed 54 cents of every dollar spent on compensation.

        • Leape L.L.
        • Berwick D.M.
        Five Years After To Err Is Human: What Have We Learned?.
        JAMA. 2005; 293: 2384-2390
      3. Kohn L.T. Corrigan J.M. Donaldson M.S. To Err Is Human: Building a Safe Health System. National Academy Press, Institute of Medicine, Washington, DC1999
        • Sage W.M.
        Putting the patient in patient safety: linking patient complaints and malpractice risk.
        JAMA. 2002; 287: 3003-3005
        • Sage W.M.
        Medical liability and patient safety.
        Health Aff (Millwood). 2003; 22: 26-36
        • Sage W.M.
        Malpractice insurance and the emperor’s clothes.
        DePaul Law Review. 2005; 54 (Clifford Symposium on tort law): 463-484
        • Brennan T.A.
        • Sox C.M.
        • Burstin H.R.
        Relation between negligent adverse events and the outcomes of medical malpractice litigation.
        N Engl J Med. 1996; 335: 1963-1967
        • Localio A.R.
        • Lawthers A.G.
        • Brennan T.A.
        • et al.
        Relation between malpractice claims and adverse events due to negligence: results of the Harvard Medical Practice Study III.
        N Engl J Med. 1991; 325: 245-251
        • Studdert D.M.
        • Mello M.M.
        • Gawande A.A.
        • et al.
        Claims, errors, and compensation payments in medical malpractice litigation.
        N Engl J Med. 2006; 354: 2024-2033
      4. Studdert, Mello, Brennan (2004), op. cit.

      5. Claybrook J. No medical malpractice “crisis” in Washington State; damage caps would harm those most injured, wouldn’t lower rates. Available at: Accessed May 8, 2007.

      6. American Medical Association (“Medical liability reform – now!”), op. cit., pp. 3, 50 ff.

      7. Weiss Ratings. Medical malpractice caps: the impact of non-economic damage caps on physician premiums, claims payout levels, and availability of coverage. Available at: Accessed May 8, 2007.

        • Encinosa W.E.
        • Hellinger F.J.
        Have state caps on malpractice awards increased the supply of physicians?.
        Health Aff (Millwood). 2005; : W5-250-W5-258
        • Mello M.M.
        • Studdert D.M.
        • Schumi J.
        • et al.
        Changes in physician supply and scope of practice during a malpractice crisis: evidence from Pennsylvania.
        Health Aff (Millwood). 2007; 26: w425-w435