The recurring crises in medical malpractice litigation have been widely discussed and documented over the past two decades.' In response to these crises, a growing consensus has emerged among legislatures, government agencies, and scholars in favor of tort reform. Indeed, virtually every state has passed some tort reform legislation.'Despite the reforms, several serious problems persist in medical malpractice. The current tort system does not compensate injured patients adequately or equitably, nor does it deter negligent practices sufficiently. These failings occur despite the increasingly high costs to society of the tort system. Particularly troublesome is the impact of these crises on the access to and quality of medical care.
In response to these persistent problems and the failure of conventional tort reform efforts, the American Medical Association, thirty-one national medical specialty societies, and the Council of Medical Specialty Societies have joined together as the AMA/Specialty Society Liability Project (Liability Project) to propose a new and comprehensive alternative to the existing tort system. The proposal has three components and is designed for implementation on an experimental basis in one or more states.
The proposal first calls for an administrative hearing process to re-place the civil jury system in deciding claims of medical malpractice.Second, while fault is retained as the basis for liability, the proposal modifies several of the other legal rules for determining liability. These first two elements of the proposal are designed to bring greater rationality, equity, and efficiency to the tort system's goal of compensation. The proposal also includes reforms of the processes for educating, credentialing, and disciplining physicians. These changes will ensure that physicians are of a high quality which, ultimately, is the purpose of deterrence in the current malpractice system.
Part II of this Article discusses the problems with the current tort regime in medical malpractice. Part III describes the medical profession's proposed alternative, and Part IV explains why the proposed system is superior to the current tort system in dealing with medical injury. Part V concludes that the proposed administrative alternative is fair to patients, physicians, and the public and deserves implementation, at least on an experimental basis.
Kirk B. Johnson, Carter G. Phillips, David Orentlicher Orentlicher M.D., and Martin S. Hatlie,
A Fault-Based Administrative Alternative for Resolving Medical Malpractice Claims,
42 Vanderbilt Law Review
Available at: https://scholarship.law.vanderbilt.edu/vlr/vol42/iss5/2