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Allen Redlich

Abstract

Another nationwide outbreak of what is commonly called the medical malpractice "crisis" is spreading. Once again, as during prior episodes, the public hears of dramatic increases in the cost of malpractice insurance, of growing numbers of multimillion dollar awards, and of increases in the number of suits filed. Already several states have passed statutes in attempts to resolve the crisis. This crisis atmosphere resembles the crisis of the mid-seventies when every state enacted so-called "remedial" statutes, which failed to solve the crisis. A physician would define a "crisis" as a turning point in the course of a disease; nonmedical definitions of "crisis" usually focus upon specific times or events. As the medical profession has been complaining about malpractice litigation for more than twenty-five years, use of the term "crisis" is inappropriate. Nevertheless, medical malpractice insurance premiums now approach six figures, mirroring an unspecified increase in the size and number of claims, settlements, and judgments. At the same time, the health care industry faces numerous other difficult problems. For-profit hospital chains have replaced nonprofit hospitals. Physician-hospital relationships face new tensions. Some commentators suggest there is an oversupply and misallocation of physicians. Cutbacks in government-funded health care programs add to the problems of the health care industry. In the past, increases in insurance premiums, because of their small amount, were easily passed on to the consumer. Today, the increases are massive and cannot be passed on to consumers because more and more medical charges are predetermined by health care insurers and government. One complicating factor in measuring the extent of the crisis is the paucity of meaningful data. There are sparse statistics from the past, speculative projections about the future, but no information about the present. There is no real proof that there is a crisis. All we know is that there is a perception of a crisis held by the medical profession which now, as in the past, is agitated and lobbying for relief. There is also no proof that the medical profession cannot afford the cost of insurance premiums, and consequently it is difficult objectively to justify preferential treatment for physicians. But, beliefs and perceptions, even if distorted, cannot be ignored as they can themselves be a problem if held by important segments of society. Physicians, insurers, and legislators appear to act upon the premise that there is a crisis. Thus, this Article assumes that there is "too much" medical malpractice litigation costing "too much" even though the premise is unproven. It recommends a number of procedural changes designed both to defuse the medical profession's anxiety and to reduce the number of malpractice suits in a logical and fair manner. In return, it asks that doctrinal advantages obtained or sought by the medical profession be surrendered.

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