An overview of medical malpractice litigation and the perceived crisis

Abstract

In this overview of medical malpractice litigation in the United States, practical and philosophic aspects of the so-called malpractice litigation crisis are addressed. After reviewing the historical, legal rationale for compensating victims of negligent conduct by others, attention is focused on the plight of physicians who are charged with medical negligence and the oppressive insurance premiums that impose a heavy burden on all health care providers, particularly those in the surgical fields. A variety of political solutions advanced to "correct" the problem is reviewed. A historical prospective of malpractice litigation in the United States is presented together with an analysis of various legislative proposals--many of which have already been enacted in various states that will ostensibly "cure" the problems that concern clinicians. Consideration of the various legislative proposals includes: arbitrary limits on pain and suffering awards (caps); elimination of joint and several liability; regulation of attorneys fees; elimination of the collateral source rule; abrogation of punitive damages; proposals for periodic payments; and statutes of repose. Various procedural changes in the processing of malpractice claims are reviewed and analyzed from the perspective of both fairness and efficacy.