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.
James F. Blumstein,
Medical Malpractice Standard-Setting: Developing Malpractice "Safe Harbors" as a New Role for QIOs?,
59 Vanderbilt Law Review
Available at: https://scholarship.law.vanderbilt.edu/vlr/vol59/iss4/1