Few people would disagree that the current state-specific medical liability systems throughout the United States are slated for significant changes to address what many have termed the “medical malpractice crisis.” (1) Although there seems to be consensus regarding the breadth of the so-called crisis and the need for successful reform, there is little agreement regarding which methods of change will result in the most effective strategy for medical malpractice reform. The fact that more than 400 legislative bills on this topic were filed in 48 states in 2005 is indicative of the diverse, and oftentimes contentious, solutions to reform. (2)

The numerous solutions suggested by state legislators illustrate that medical malpractice reform is a multidimensional issue that cannot be resolved with one distinct strategy. Legislators must take a number of factors into consideration when proposing medical malpractice reform strategies, making the task both complex and controversial. Among the many elements that factor into the reform strategies are economics (eg, rising health care costs, increased medical malpractice insurance premiums, jury awards in malpractice lawsuits); patient rights (eg, access to quality health care, compensation for negligent medical acts); regulatory aspects (eg, of physicians, the insurance industry, attorneys); and the affect of the proposed law on existing laws both at the state and federal levels.

CURRENT MEDICAL MALPRACTICE LAWS
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This article explores some of the reform strategies that state governments have adopted, including the elements of the medical malpractice system the state legislatures intended to change. It also provides a brief discussion regarding the states in which medical malpractice reform initiatives are anticipated to continue during the 2006 state legislative session. Overall, this article explores the extreme complexity and political polarization that state legislators face in attempting to successfully achieve medical malpractice liability reform.

Damage caps. One of the common approaches to medical malpractice reform adopted by states is to implement damage caps. Damage caps limit the amount of money a patient can receive as compensation for injury(ies) suffered as a result of an alleged negligent medical act. Approximately 32 states have laws that cap specific types of compensatory damage awards in medical malpractice cases. (3) Many of these laws restrict the amount of money that a patient can receive for noneconomic damages or what is often referred to as “pain and suffering.” (4)

For example, Alaska, California, Idaho, Kansas, Montana, Ohio, Texas, and West Virginia laws prohibit a patient from receiving more than $250,000 for noneconomic damages. (3) One rationale behind noneconomic damage caps is that because such damages are extremely difficult to quantify, a jury often will inflate the award to the injured patient. In turn, such awards are believed to increase the costs associated with medical malpractice insurance (eg, increased medical insurance premiums that then create increased health care costs). (4)

Other states, including Colorado, Indiana, Louisiana, Nebraska, New Mexico, and Virginia, have laws that apply in all injury-related cases, medical liability Included, that cap the monetary amount that an injured patient can receive for all damages, both economic (eg, lost wages) and noneconomic. (4) Further, a number of states have adopted laws that restrict the amount of and the conditions under which monetary damages are awarded to punish the health care provider for a “wanton disregard of [patient] safety” (ie, punitive damages). (3,5)

Although they are popular in the medical malpractice reform arena, damage caps are not without their critics. Opponents of damage caps, including attorneys and patient rights and safety organizations, contend that damage caps penalize the most seriously Injured patients while reducing health care providers’ accountability for negligent acts. (4)

Modifying the collateral source rule. A second approach to medical liability reform that a number of states adopt is modifying the collateral source rule. Intact, the collateral source rule prohibits defendants from introducing information at trial or during negotiation for the purpose of off setting the damages awarded by asserting that the plaintiff may have received compensation from another source (eg, worker’s compensation, another Insurer). (5)

Connecticut, Hawaii, Maryland, Missouri, North Carolina, Oklahoma, Oregon, Tennessee, and Vermont permit consideration of collateral source payments received by the patient when damages are awarded in medical malpractice cases. (6) Proponents of this type of reform argue that “[w]hen a plaintiff receives compensation from their insurance company and again at trial, the Insurance proceeds do not represent actual compensation for an Individual’s injuries, but rather a source of windfall.” (7)