Vanderbilt Law Review

First Page



Concern about medical malpractice issues has reemerged, again stemming from escalating costs in some geographic regions and sectors of medical practice. The Bush Administration has (so far unsuccessfully) supported a cap on noneconomic loss as a strategy for coping with the cost aspects of those medical malpractice concerns, the model being the California approach.

Although the overall initiative for reform has considerable merit, the damage-cap has its opponents and its drawbacks. The damage-cap approach is remedy-centric, focusing on the scope of remedy as a vehicle for containing costs in the area of medical malpractice. By concentrating on remedies, the reform of damage caps assumes that a plaintiff can establish liability, as remedial issues traditionally follow in the wake of and as a consequence of a finding of liability.

In earlier work, colleagues and I have addressed the remedy issue, focusing on damages for noneconomic loss. The objective was to develop a way to improve the system for awarding damages for noneconomic loss.

The approach to reform put forward in this Article looks at the medical-malpractice cost-containment issue in a different way. Like the work on noneconomic damages, it is designed to improve the functioning of the system; unlike that earlier work, however, its focus is not on the remedy-damages issues-but on the determination of liability. The systemic improvement is designed to allow for the appropriate consideration of trade-offs between quality and risk on the one hand and cost on the other.