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Code Blue: The Case for Serious State Medical Liability Reform

By and
January 17, 2006

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A related issue is the provision of charity or emergency care. Doctors who treat the poor pro bono, particularly those who care for patients who are especially difficult to treat, deserve relief. The same holds true for physicians working in emer­gency rooms, who invariably treat patients whom they have never seen before. As Jane Orient, M.D., executive director of the Association of American Physicians, has noted, "Emergencies are always high risk situations. Doctors are fatigued, pres­sured, and working with incomplete informa­tion."[72] Physicians in such circumstances are especially in need of tort liability relief.

In an effort to encourage charity and emergency care, states can take a variety of approaches. Cur­rently, states most commonly limit liability for charity care by raising the liability standard from negligence to gross negligence and by indemnify­ing physicians as if they were state employees. For example, Florida's successful Volunteer Health Care Provider Program extends the state's sover­eign immunity protection to physicians treating uninsured patients.[73] Texas's 2003 tort reforms included a lower cap on non-economic damages for hospitals that provide significant amounts of charity care.[74]

States may also consider extending these protec­tions to emergency care practitioners. For example, Georgia recently enacted legislation that raises the burden of proof to clear and convincing evidence of gross negligence for malpractice claims against emergency room physicians.[75]

Option #6: Follow the MICRA Model

With three decades of proven results, California's largely successful Medical Injury Compensation Reform Act (MICRA) of 1975 is a model that states can use to craft their own medical malpractice reforms. Due to the impact of MICRA, California liability insurance costs one-third the price of insurance in liability crisis states. Surprisingly, while California remains one of the most litigious states in the Union, its physicians pay 30 percent less in constant dollars for liability insurance than they paid in 1976.[76]

Specifically, reforms based on the MICRA model would:

  • Secure the ability of injured patients to receive quick, unlimited compensation for their economic losses. Economic losses are broadly defined to include lost wages, hospital bills, and even unpaid services like care for children or parents.
  • Ensure that recoveries for non-economic damages do not exceed a reasonable amount (e.g., $250,000).
  • Reserve punitive damages for cases in which they are truly justified and limit punitive dam­ages to a reasonable amount.
  • Provide for periodic payment of judgments over time rather than in single lump sums, ensuring that appropriate payments are available when patients need them. Periodic payments also make it more likely that physician-defendants will be able to survive large damage awards.
  • Ensure that old cases cannot be brought years after an event occurs (through statutes of lim­itations or repose).
  • Reduce the amount that doctors must pay if a plaintiff has received other payments from an insurer to compensate for their losses (collat­eral source rules).
  • Provide that defendants must pay judgments only in proportion to their degree of fault (joint and several liability reform). For instance, this reform prevents defendants who are only 1 percent liable from paying 100 per­cent of the judgment.[77]

State lawmakers can incorporate these proposals or variants of these proposals as part of their state legislative remedies. It is important to remember that any solution must help to restore a level of cer­tainty to the liability insurance market in order to have the desired effect of reducing premiums and improving access to care.

Option #7: Learn from Oregon's Bad Example

Oregon provides an example of what not to do. In 1987, Oregon enacted a cap on non-economic dam­ages in response to a previous malpractice crisis. By 1990, the reforms had taken hold, alleviating the cri­sis and helping to reduce premiums by 50 percent.[78]

That changed in 1999, when the Oregon Supreme Court declared the cap unconstitu­tional.[79] Over the next five years, premiums increased by over 100 percent, and by 332 percent for some specialists. Two leading Oregon malprac­tice insurers hiked premiums for all doctors by 80 percent in one year-the fourth highest increase in the country-while other insurers left the state.[80] (See Chart 2.) Insurers were forced to increase rates in response to a shocking statistic: In the two years following the Oregon Supreme Court's decision, paid claims increased by 400 percent.[81]

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For state lawmakers, the Oregon example shows that ineffective malpractice reform may be worse than no reform at all. To be effective, reforms must not only restore a measure of certainty to the insur­ance market, but also survive constitutional mus­ter. Thus, depending on the solution and the judicial makeup of the state, reformers should con­sider proposing constitutional amendments along­side malpractice reform legislation.

Option #8: Promote Real Competition to Reduce Medical Errors

While the goal of zero medical errors is perhaps unattainable, the most effective way to attack the root of the medical malpractice problem is to reduce the number of people injured.[82] According to the Institute of Medicine, preventable medical errors kill somewhere between 44,000 and 98,000 Americans each year, making medical error more deadly than breast cancer, car crashes, or AIDS.[83]

Regardless of who is at fault or whether there is legal negligence involved, this alarming number needs to be reduced as much as possible and as quickly as possible. One way to do this is to unleash the power of consumers to take control of their own destinies in the health care system.

Health care is not a commodity in which all doc­tors, nurses, and hospitals are the same. Yet accord­ing to a recent article by Michael E. Porter, a Harvard professor and business strategist, and Eliz­abeth Olmsted Teisberg, a business professor at the University of Virginia, this attitude hampers today's health care system. Porter and Teisberg found that providers in the health care market compete for access to insurers' patient pools on the basis of price alone (as in the commodities market) rather than competing based on the value of the services they provide (as in other markets). Health care con­sumers today are generally prevented from shop­ping for the best provider to treat their particular condition. Instead, people are penalized for seek­ing care outside the pre-approved doctors in their insurance company's network. Providers belonging to the network are virtually guaranteed the busi­ness, dampening the incentive to push for better value.[84]

The lesson is both simple and easily grasped: When purchasers like employers and insurance companies view health care as a commodity, too much attention is paid to cutting costs and not enough attention is paid to improving the safety and effectiveness of the health care delivered.

In an industry in which choice is restricted and competition for value is rare, consumers turn to the legal system to compensate them when they receive poor value (or believe that they have received poor value). Some disgruntled consumers have found a sympathetic ear in the courts, where judges and juries see tort cases as a means to lash out at the maladies of the health care system.[85]

However, tort law is ineffective at ensuring quality health care. As noted, it is very difficult for an injured patient to sue and win in court. Further­more, most medical errors go unrecognized and uncompensated. Finally, the fear of lawsuits will not ensure good quality on its own. Without real incen­tives to improve care, legal fears will only reinforce a minimal standard of care (i.e., doctors will behave only well enough to avoid being sued).[86]

Authors like Porter and Teisberg have envisioned a better health care system that would allow providers to compete on the basis of individual health condi­tions, creating better value for consumers. Rather than being forced to accept health care services essen­tially "as is" and then sue later on if something goes wrong, consumers would be presented with new and better options. Competition based on quality would allow consumers to vote with their feet about which providers and services they prefer. Instead of relying on the fear of lawsuits to enforce a minimal standard of care, providers would need to innovate and improve constantly to remain competitive.

Empowered consumers make the best regulators. Over time, consumers would begin to subsidize the providers that do the best job and cut off funding for providers who underperform, forcing them either to make improvements or to find another job. In the battle to offer the best value, providers will reduce medical error rates and improve services.

While the federal government plays a central role in this area, states can take several steps to encourage real competition and consumer choice in health care. Requiring providers to use transpar­ent pricing will reduce the confusion surrounding the question of how much health care services really cost. Rolling back coverage mandates for insurance plans will allow people to purchase plans that better suit their needs. Encouraging consumer-driven options like health savings accounts (HSAs) will increase consumers' ability to demand better quality from and communication with their doc­tors.[87] By collecting and publishing better informa­tion on health care quality and outcomes, states can help to inform the public about quality and drive the demand for better health care.[88]

Conclusion

The medical malpractice crisis in the United States must be addressed. Access to affordable care is being compromised for millions of Americans. The doctors' ability simply to afford to practice medicine is slipping through the fingers of far too many highly skilled and caring hands while trial lawyers reap the benefits of an outdated, outmoded system. States need to stop the exodus of good phy­sicians while protecting the right of patients to seek redress for real medical injuries.

Options for states include rationalizing and refocusing malpractice awards to compensate quickly for economic losses like lost pay and med­ical bills, reserving punitive damages for the small number of warranted malpractice cases, and limit­ing attorneys' fees to guarantee that patients get the highest possible proportions of awards in med­ical malpractice cases. For example, the Fair and Reliable Medical Justice Act (S. 1337), federal leg­islation introduced by Senators Mike Enzi (R-WY) and Max Baucus (D-MT), would grant states money to create innovative solutions to the mal­practice crisis, such as specialized health courts. States may also wish to consider creating patient indemnity insurance, a new breed of insurance that would compensate for injuries at a level cho­sen by the patient. States should mix and match the solutions presented in this paper, tailoring reforms to meet specific challenges.

While reforming the medical malpractice system will not cure all of America's health care woes, the right kind of reform could virtually eliminate the long-drawn-out lawsuits in which the biggest win­ners are the trial lawyers, not the parties. It could free doctors from the crush of ever-increasing lia­bility premiums and empower patients to choose their own destinies.

Randolph W. Pate, J.D., M.P.H., is Visiting Health Policy Fellow and Derek Hunter, at the time this paper was written, was a Research Assistant in the Center for Health Policy Studies at The Heritage Foundation. The authors are grateful to Todd F. Gaziano, Senior Fellow in Legal Studies and Director of the Center for Legal and Judicial Studies at The Heritage Foundation, for his help­ful comments and suggestions.

 


[1]The Tenth Amendment to the U.S. Constitution states: "The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people."

[2]The U.S. House of Representatives has passed 10 medical liability reform bills since the Republicans took control in 1995. Jan Austin, ed., CQ Almanac Plus 2003, 59th ed. (Washington, D.C.: Congressional Quarterly Books, 2004), pp. 13- 15. The House passed the Help Efficient, Accessible, Low-Cost, Timely Healthcare (HEALTH) Act of 2005 (H.R. 5) on July 29, 2005. The legislation awaits Senate action.

[3]U.S. Department of Health and Human Services, Report of the Task Force on Medical Liability and Malpractice, August 1987.

[4]See, generally, Michael I. Krauss and Robert A. Levy, "Can Tort Reform and Federalism Coexist?" Cato Institute Policy Anal­ysis No. 514, April 14, 2004.

[5]U.S. Constitution, Article I, § 8, Clause 3.

[6]See American Tort Reform Association, "Judicial Hellholes 2005," December 13, 2005, at www.atra.org/reports/hellholes/ report.pdf (January 6, 2006).

[7]National Conference of State Legislatures, "State Medical Malpractice Reform: 2005 Numbers at a Glance," updated June 24, 2005, at www.ncsl.org/standcomm/sclaw/medmalataglance.htm (December 2, 2005).

[8]Webster's Unabridged Dictionary, 2nd ed., s.v. "Tort" (emphasis added).

[9]The present-day medical malpractice system is based on the judge-made law handed down from the old English common law courts. One English jurist recently summarized common law as "the formal statement of the results and conclusions of the common sense of mankind." Phillip K. Howard, "When Judges Won't Judge," The Wall Street Journal, October 22, 2003.

[10]One exception to the principle of fault in tort cases occurs in certain product liability cases in which a statutory "strict lia­bility" standard applies. In those cases in which the legislature has altered standard tort liability rules, it is not necessary for the plaintiff to prove the defendant was at fault.

[11]For example, see W. Page Keeton, Dan B. Dobbs, Robert E. Keeton, and David G. Owen, eds., Prosser and Keeton on the Law of Torts, 5th ed. (St. Paul, Minn.: West Publishing, 1984), and David M. Studdert et al., "Medical Malpractice," The New England Journal of Medicine, Vol. 350, No. 3 (January 15, 2004), p. 283.

[12]David M. Studdert, Michelle M. Mello, and Troyen A. Brennan, "Medical Malpractice," The New England Journal of Medicine, Vol. 350, No. 3 (January 15, 2004), p. 285.

[13]Paul C. Weiler, Howard H. Hiatt, Joseph P. Newhouse, William G. Johnson, Troyen A. Brennan, and Lucian L. Leape, A Measure of Malpractice: Medical Injury, Malpractice Litigation and Patient Compensation (Cambridge, Mass.: Harvard Univer­sity Press, 1993).

[14]See Stephen B. Presser, "How Did We Get Here? What Litigation Was, What It is Now, What It Might Be," Common Good, June 27, 2005, at cgood.org/assets/attachments/142.pdf (December 2, 2005).

[15]Ibid.

[16]For a summary of all 50 states' medical malpractice laws, see National Conference of State Legislatures, "State Medical Mal­practice Tort Laws," updated January 13, 2005, at www.ncsl.org/standcomm/sclaw/medmaltorttable205.htm (December 2, 2005).

[17]Harris Interactive, "Fear of Litigation Study: The Impact on Medicine," Study No. 15780, April 11, 2002, at cgood.org/ assets/attachments/57.pdf (December 2, 2005).

[18]William Booth, "Las Vegas Trauma Center Closes as Doctors Quit; Surgeons Cite Rising Costs of Malpractice Insurance, Lawsuits," The Washington Post, July 4, 2002, p. A2.

[19]"Nation in Brief," The Washington Post, July 14, 2002, p. A8.

[20]Ibid.

[21]William E. Encinosa and Fred J. Hellinger, "Have State Caps on Malpractice Awards Increased the Supply of Physicians?" Health Affairs, May 31, 2005.

[22]Robert Redding Jr. and Jim McElhatton, "Maryland Faces 40 Percent Loss of Physicians," The Washington Times, October 6, 2004, at washtimes.com/metro/20041006-011905-2332r.htm (December 5, 2005).

[23]M. William Salganik, "CareFirst to Pass Along HMO Tax It Pays Now," The Baltimore Sun, December 3, 2005, at www.baltimoresun.com/business/bal-bz.carefirst03dec03,1,1365107,print.story (January 9, 2006).

[24]Redding and McElhatton, "Maryland Faces 40 Percent Loss of Physicians."

[25]American College of Emergency Physicians, The National Report Card on the State of Emergency Medicine: Evaluating the Environ­ment of Emergency Care Systems State by State, January 2006, p. 59, at http://my.acep.org/site/DocServer/2006-NationalReportCard. pdf?docID=221 (January 10, 2006).

[26]U.S. General Accounting Office, Medical Malpractice: Implications of Rising Premiums on Access to Health Care, GAO-03-836, August 2003, at www.gao.gov/new.items/d03836.pdf (December 13, 2005). The General Accounting Office was renamed the Government Accountability Office on July 7, 2004.

[27]Robert G. Brooks, Nir Menachemi, Art Clawson, and Les Beitsch, "Availability of Physician Services in Florida, Revisited," Archives of Internal Medicine, Vol. 165, No. 18 (October 10, 2005), pp. 2136-2141.

[28]Daniel P. Kessler, William M. Sage, and David J. Becker, "Impact of Malpractice Reforms on the Supply of Physician Ser­vices," Journal of the American Medical Association, Vol. 293, No. 21 (June 1, 2005), pp. 2618-2625.

[29]Council of Economic Advisers, "Who Pays for Tort Liability Claims? An Economic Analysis of the U.S. Tort Liability Sys­tem," April 2002, at www.whitehouse.gov/cea/tortliabilitysystem_apr02.pdf (December 5, 2005).

[30]Employment Policy Foundation, "Medical Malpractice Litigation Raises Health Care Cost, Reduces Access and Lowers Qual­ity of Care," Issue Backgrounder, June 19, 2003, at www.epf.org/pubs/newsletters/2003/ib20030619.pdf (December 5, 2005).

[31]Press release, "President Calls for Medical Liability Reform," White House, January 16, 2003, p. 2, at www.whitehouse.gov/ news/releases/2003/01/20030116.html (December 5, 2005).

[32]Robert Redding Jr., "Most OB-GYNs Sued at Least Once; Settlements Costly," The Washington Times, December 12, 2004, p. A9, at www.washingtontimes.com/metro/20041211-114116-5399r.htm (December 5, 2005).

[33]Richard E. Anderson, M.D., "Defending the Practice of Medicine," Archives of Internal Medicine, Vol. 164, No. 11 (June 14, 2004), p. 1174.

[34]Congressional Budget Office, "Limiting Tort Liability for Medical Malpractice," Economic and Budget Issue Brief, January 8, 2004, at www.cbo.gov/ftpdocs/49xx/doc4968/01-08-MedicalMalpractice.pdf (December 5, 2005).

[35]David M. Studdert, Michelle M. Mello, William M. Sage, Catherine M. DesRoches, Jordon Peugh, Kinga Zapert, and Troyen A. Brennan, "Defensive Medicine Among High-Risk Specialist Physicians in a Volatile Malpractice Environment," Journal of the American Medical Association, Vol. 293, No. 21 (June 1, 2005), pp. 2609-2617.

[36]Harris Interactive, "Fear of Litigation Study."

[37]For a discussion of defensive medicine and its potential costs to the health care system, see Joint Economic Committee, U.S. Congress, Liability for Medical Malpractice: Issues and Evidence, May 2003, at www.house.gov/jec/tort/05-06-03.pdf (December 5, 2005).

[38]Christopher J. Conover, "Health Care Regulation: A $169 Billion Hidden Tax," Cato Institute Policy Analysis No. 527, Octo­ber 4, 2004, at www.cato.org/pubs/pas/pa527.pdf (December 5, 2005).

[39]As of May 2005, the American Medical Association listed 20 "States in crisis," 23 "States showing problem signs," six "States currently okay," and one state (Texas) under the category "Effective reforms halting crisis." American Medical Association "Medical Liability Crisis Map," May 2005, at www.ama-assn.org/ama/noindex/category/11871.html (December 5, 2005).

[40]Ken Thorpe, "The Medical Malpractice 'Crisis': Recent Trends and the Impact of State Tort Reforms," Health Affairs, January 21, 2004, at content.healthaffairs.org/cgi/reprint/hlthaff.w4.20v1 (December 5, 2005).

[41]Daniel P. Kessler, William M. Sage, and David J. Becker, "Impact of Malpractice Reforms on the Supply of Physician Ser­vices," Journal of the American Medical Association, Vol. 293, No. 21 (June 1, 2005), pp. 2618-2625.

[42]William E. Encinosa and Fred J. Hellinger, "Have State Caps on Malpractice Awards Increased the Supply of Physicians?" Health Affairs, May 31, 2005, at content.healthaffairs.org/cgi/reprint/hlthaff.w5.250v1 (December 5, 2005).

[43]George F. Will, "Tort Reform Now," The Washington Post, September 29, 2002, p. B7.

[44]Wendy McElroy, "Lawsuits Fueling Health Care Crisis," Fox News, May 14, 2002.

[45]American Tort Reform Association, "Mississippi Reforms," at www.atra.org/states/MS (December 5, 2005).

[46]PR Newswire, "In Medical Malpractice Cases, It Really Matters If the Federal Trial Judge Was Appointed by Democrat or Republican President," September 15, 2004.

[47]Eleanor Barrett, "Report: Gains Realized with Texas Med-Mal Reforms," BestWire, August 3, 2005.

[48]American Medical Association, "Medical Liability Crisis Map."

[49]Employment Policy Foundation, "Medical Malpractice Litigation Raises Health Care Cost."

[50]National Conference of State Legislatures, "State Medical Malpractice Tort Laws."

[51]Mass. Ann. Laws, Ch. 231, § 60I.

[52]American Bar Association, Model Rules of Professional Conduct,2004 ed., Rule 1.5, at www.abanet.org/cpr/mrpc/rule_1_5.html (December 6, 2005).

[53]See Jefferey O'Connell, Carlos M. Brown, and Michael D. Smith, "Yellow Page Ads as Evidence of Widespread Overcharg­ing by the Plaintiffs' Personal Injury Bar-And a Proposed Solution," Connecticut Insurance Law Journal, Vol. 6, No. 2 (1999-2000), p. 423. The practice has earned the American Trial Lawyers Association (ATLA) the pejorative nickname "At-Least-a-Third Lawyers Association."

[54]American Bar Association, Tort Trial & Insurance Practice Section, Task Force on Contingent Fees, Report on Contingent Fees in Medical Malpractice Litigation, September 20, 2004, at www.abanet.org/tips/contingent/MedMalReport092004DCW2.pdf (December 8, 2005).

[55]Representative Richard Gephardt (D-MO), comments on the Alternative Medical Liability Act (H.R. 5400) before the Sub­committee on Health, Committee on Ways and Means, U.S. House of Representatives, June 28, 1984.

[56]Jeffrey O'Connell and Patrick B. Bryan, "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, Vol. 15, No. 1 (2000).

[57]Ibid.

[58]See S. 1861, 104th Cong., 2nd Sess.

[59]The PII concept was also put forth during the Reagan Administration in the aforementioned 1987 Report of the Task Force on Medical Liability and Malpractice.

[60]A study of medical errors in an intensive care unit showed that health care providers were functioning at a 99 percent rate of proficiency. Of the errors that occurred in 1 percent of cases in intensive care units, 29 percent potentially could have led to serious injury or death. Lucian L. Leape, M.D., "Error in Medicine," Journal of the American Medical Association, Vol. 272, No. 23 (December 21, 1994), p. 1851.

[61]Troyen A. Brennan, Colin M. Sox, and Helen R. Burstin, "Relation Between Negligent Adverse Events and the Outcomes of Medical-Malpractice Litigation," The New England Journal of Medicine, Vol. 335, No. 26 (December 26, 1996), pp. 1963-1967.

[62]Betsy McCaughey, "Medical Courts," The Wall Street Journal, August 25, 2005.

[63]Heather Won Tesoriero, Ilan Brat, Gary McWilliams, and Barbara Martinez, "Merck Loss Jolts Drug Giant, Industry," The Wall Street Journal, August 22, 2005.

[64]Jeffrey O'Connell and Christopher Pohl, "Book Review: How Reliable Is Medical Malpractice Law?" Journal of Law and Health, Vol. 12, No. 2 (1998), pp. 367-368, a review of Neil Vidmar, Medical Malpractice and the American Jury: Confronting the Myths About Jury Incompetence, Deep Pockets, and Outrageous Damage Awards (Ann Arbor, Mich.: University of Michigan Press, 1995).

[65]See Common Good, "An Urgent Call for Special Health Courts: America Needs a Reliable System of Medical Justice," at cgood.org/brochure-hcare.html (December 8, 2005).

[66]Nancy Udell and David B. Kendall, "Health Courts: Fair and Reliable Justice for Injured Patients," Progressive Policy Insti­tute Policy Report, February 2005, at www.ppionline.org/documents/healthcourts_0217.pdf (December 8, 2005).

[67]Editorial, "The Silicosis Sheriff," The Wall Street Journal, July 14, 2005, p. A10.

[68]Udell and Kendall, "Health Courts."

[69]Even in jury trials, determination of damages could probably be left to judges without violating the Seventh Amendment.

[70]Michael O. Leavitt, "Medicaid: A Time to Act," speech to the World Health Congress, Washington, D.C., February 1, 2005, at www.hhs.gov/news/speech/2005/050201.html (December 8, 2005).

[71]Julie A. Schoenman, Ph.D., and Jacob J. Feldman, Ph.D., "2002 Survey of Physicians About the Medicare Program," Medi­care Payment Advisory Commission, December 2002, p. 2, at www.medpac.gov/publications/contractor_reports/ Mar03_02PhysSurvRpt2.pdf (December 8, 2005). See also Nina Owcharenko, "The Top Ten Reasons for Medicaid Reform," Heritage Foundation WebMemo No. 718, April 12, 2005, at www.heritage.org/Research/HealthCare/wm718.cfm.

[72]Jane Orient, M.D., executive director, Association of American Physicians and Surgeons, personal communication, January 4, 2005.

[73]Howard B. Shapiro, "Providing Charity Care: A Primer on Liability Risk," Family Practice Management, Vol. 10 No. 1 (Janu­ary 2003), pp. 29-38, at www.aafp.org/fpm/20030100/52prov.html (December 8, 2005).

[74]Mary Chris Jaklevic, "Charity Has Its Benefits," Modern Healthcare, Vol. 34, Issue 23 (June 7, 2004), p. 14.

[75]Georgia General Assembly, Senate Bill 3, 2005-2006 Legislative Session, enacted February 13, 2005, at www.legis.state.ga. us/legis/2005_06/pdf/sb3.pdf (December 8, 2005).

[76]Richard E. Anderson, M.D., "Further Examine the Malpractice Plague," Physician's Money Digest, OB/GYNed., November/ December 2002, p. 18.

[77]Press release, "President Calls for Medical Liability Reform."

[78]Stephen Grover, Ph.D., "Medical Malpractice Damage Caps: Impacts of Limiting Noneconomic Damages," ECONorthwest, July 29, 2004, at www.theoma.org/Files/ECON_NW_MEDMAL_REPORT.pdf (December 8, 2005).

[79]See Lakin v. Senco Products, Inc., 329 Or. 62, 987 P.2d 463 (1999).

[80]Grover, "Medical Malpractice Damage Caps."

[81]Anderson, "Further Examine the Malpractice Plague," p. 18.

[82]However, it should be noted that even error-free medicine does not guarantee a favorable outcome, especially for high-risk patients.

[83]Linda T. Kohn, Janet M. Corrigan, and Molla S. Donaldson, eds., To Err Is Human: Building

[85]Michael I. Krauss, "Tort Law and Private Ordering," Saint Louis University Law Journal, Vol. 35 (Spring 1991), pp. 649-650.

[86]See James Reason, "Human Error: Models and Management," British Medical Journal, Vol. 320, Issue 7237 (March 18, 2000), pp. 768-770.

[87]See Nina Owcharenko, "Bringing True Competitiveness to Health Care," Heritage Foundation WebMemo No. 502, May 12, 2004, at www.heritage.org/Research/HealthCare/wm502.cfm.

[88]For an example of state efforts to give consumers better information about health care quality, see Florida Department of Health, Agency for Health Care Administration, Florida Compare Care, at www.floridacomparecare.com (January 9, 2006). This Web-based database offers Florida consumers information about the performance of selected health care providers, including measures of hospital infection rates and mortality rates.

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Access to affordable care is being compromised for millions of
Americans. To address the medical malpractice crisis in a way that
reflects their particular circumstances, state legislators can
choose from a menu of reform options, including early offer,
patient indemnity insurance, and special health courts. The best
solutions will enhance patients' rights while curbing the system's
current excesses.

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