Fault: An Alternative to the Current Tort-Based

Fault: An Alternative to the Current Tort-Based System in England and Wales

The United Kingdom

statistics regarding claims

THE NATIONAL HEALTH SYSTEM

OBSTACLES TO DUE PROCESS

THE CASE FOR REFORM

THE REGULATORY ENVIRONMENT

THE RISING COST OF LITIGATION

LORD WOOLF'S REFORMS

MORE COST CONTROLS

THE UNITED STATES

PAUL'S PULLOUT

THE INSURANCE INDUSTRY

TORT REFORM IN AMERICA

FLEEING PHYSICIANS

STATISTICS FOR ERROR, INJURY AND DEATH

THE CALL FOR REFORM IN 2003: A FAMILIAR REFRAIN

THE UNITED STATES SITUATION, IN SUMMARY

NEW ZEALAND CASE STUDIES

THE SWEDISH SCHEME

COMPARISON: WHICH SYSTEM IS BETTER?

FIRST: UNDERLYING DIFFERENCES

TALKING TORT: AMERICAN PECULIARITIES

AMERICANS CONSIDER NO-FAULT

BRITAIN CONSIDERS NO-FAULT

CONCLUSION

Works Cited

Appendix A THE UNITED KINGDOM

INTRODUCTION

At issue is the economic effectiveness of tort law in the common law legal system of England and Wales, as applied to medical and clinical negligence and malpractice cases. In response to economic concerns and a continual rise in cases, an examination of the consideration of a proposed no-fault alternative to the current system is underway. We will explore the basis of the current system, the impetus for change, and the characteristics of no-fault reform as experienced by other countries and its pros and cons. The principal aim of tort reform is to limit the legal or financial exposure of the NHS (National Health System) to liability for damages and to streamline the process of compensation for plaintiffs.

The common law legal system is germane not only to England, Wales and Northern Ireland, but also the Irish Republic which constitutes a major part of the mixed legal system of Scotland. The concept of Enterprise Liability was introduced in England in 1991 with Crown Indemnity and the establishment of the Clinical Negligence Scheme for Trusts, now run by the NHS Litigation Authority. There are similar schemes in Scotland and Wales. In the U.S. almost all hospitals whether self-insured or placing their insurance in the open commercial market do so on an "enterprise" basis. "Enterprise Liability extends the essence of liability of health boards and hospitals to the doctors and dentists in the same sense as they incur liability for the acts of other health care providers such as nurses and administrative staff.

A medical practitioner's conduct is generally measured by what is considered accepted medical practice. That means that a doctor will not be found negligent if a patient is treated in accordance with a practice accepted by a responsible body of medical opinion. Under the current system, by definition a "tort" is a breach of duty by negligence or malpractice leading to a liability for damages. A medical negligence trial will therefore focus on defining what accepted medical practice is in the circumstances of a particular case. Often the only experts qualified to make that determination are medical personnel.

Under the current system, the proper channel of redress for the patient is civil litigation, which contrary to no-fault solutions is founded on the principle of fault, responsibility and liability and resulting compensatory awards that reflect the nature of such findings. Since the cause of action is based in civil negligence, the burden of proof, and much of the financial burden until a determination and/or award is reached falls on potential plaintiffs, often including securing a bond equal to a significant percentage of alleged monetary damages.

The nature of a trial often boils down to the strength of the testimony of opposing experts: experts which can be a challenge for plaintiffs to retain. Doctors are reluctant to testify against peers, in the event they themselves one day are in the unattractive position of defendant. Cases can be complex and lengthy in nature during which time the victim remains uncompensated for their loss and awaits an uncertain outcome. Alan Milburn, in a BBC News Health broadcast on July 20, 2001, stated: at present the average time it takes for claims to be settled is 5.5 years.

A modicum of blame must be established before compensation for injury or loss can be rendered. In the meantime, an individual can suffer permanent and irreversible injury that, contrary to appearances, may be an exception to a normal expectation of a successful treatment, in which case there would be no blame. As a result, either no compensation is available, or an attempt is made to demonstrate malpractice where there was none. The nature of the process of civil litigation evokes a defensive attitude in all parties, as it is a black and white, "right or wrong" arena for issues that are often gray.

One of the worst imaginings of the human mind is to seek medical assistance and to be harmed as a result. Yet there lies a difference between harm due to negligence or a harm due to a set of accidental circumstances that could not have been foreseen. The medical field does not inherently provide guarantees for the outcome of all treatment. Today, the patient plays a greater role in his or her own care through the concept of informed consent. It is no longer the doctor's role as God and exalted ruler to deem whether or not the prescribed patient care will be administered as he or she sees fit; the patient must agree based on the alternatives provided and give consent for the care. It is of course within the concept of acceptable practice for the doctor to inform the patient of all risks and alternatives. It stands then that under common law, the principles are well established in that when an adverse effect is the result of third party misconduct or negligence, it is the right of the victim to seek compensation.

STATISTICS REGARDING CLAIMS

While accurate statistics are largely unavailable regarding the rise in litigation, a Harvard Medical Malpractice Study, which examined 31,000 hospital records in New York State, provides a possible measure of the size of the rate of medical error in hospitals. The Harvard Study has become the institutional standard for a methodology to estimate medical error, perhaps because to do so independently is such a humongous undertaking. The primary conclusion of Harvard's study pinpointed a rough estimate of approximately one in twenty-seven patients who suffered an "adverse event" as a result of their hospital experience. The study further exclaimed that one in four of these events resulted from negligence. Overall it was estimated that one adverse event occurred for every 100 patients hospitalized. The Harvard methodology has been replicated throughout the United States, Ireland and the United Kingdom.1

According to a report Commissioned by the Department of Heath and Children entitled "The Road to Enterprise Liability" in February of 2001, when the Harvard methodology was applied to demographics in Ireland, the results were as follows:

Inpatients

Inpatients & Day patients

Total treated

Adverse Events

Negligent Injuries

Claims

Successful Claims

The table data translates to 3.7 in 100 inpatients who suffered adverse events. The ratio remained the same when day patients were added to the mix. The ratio for negligent injuries translates to.92 of every 100 patients, results startlingly similar to the Harvard estimates. The rate of claims in these cases was.1156 in 100, or one in eight negligent injuries and one in thirty two adverse events. While the possibility that one in one hundred patients on average will suffer an adverse event due to negligence during a hospital stay, only one in eight will pursue a claim, lays testimony to the obstacles posed in the tort process for prospective plaintiffs. Causation is more difficult to establish in clinical negligence than in other personal injury cases, primarily because the result of the negligent treatment must be set apart from the patient's underlying condition that necessitated the treatment in the first place. The burden of proof is entirely up to the patient, which can be difficult to establish because the patient often has the least information. Hospitals possess the patient records, which can be difficult to obtain, and the medical opinions and particulars rest with the doctors and medical practitioners. The patient must rely on the testimony of outside experts and the advice of lawyers in hoping to first gain acknowledgement for harm done, then just compensation.

From October to November of 2001, the MORI Survey was conducted by the English Advisory Committee on the Review of Clinical Negligence.2 The survey tried to quantify the frequency and/or severity of adverse effects through a population sampling experienced as a result of their medical treatment. The respondent sample consisted of 3638 men and 4568 women, or a total population of 8,206.

395, or 4.8% (4.8 in every 100) patients felt that they had suffered some illness, injury or impairment, which directly resulted from their medical treatment or care. This figure is slightly higher than the estimates derived using the methodology from the Harvard Medical Malpractice Study, which estimated that 3.7 in every 100 patients suffered "adverse effect." The report noted that the proportion responding "positively declined with increasing age and was inversely associated with social grade." Further, the report stated, "there was evidence of a lower positive response rate in higher income groups."

The largest cluster of incidents (216 or 55%) occurred in NHS hospitals. The second largest group (99 or 25%) could be ascribed to General Practitioners. Of the incidents reported:

55% claimed the effect was emotional, minor or temporary in nature

28% reported a temporary or permanent major disability

30% claimed the event had a permanent impact on their health

35% reported to have taken at least one month out of work due to the event

25% reported missing at least one year of work because of the event

Perhaps most notable were the answers to the question: "What response would be most appropriate to the event that occurred?" The majority, or 34% of those surveyed felt that an apology or an explanation was appropriate. Twenty three percent wanted an inquiry into the causes, and sixteen percent wanted support in coping with the outcome. Lastly, eleven percent felt that financial compensation was the most appropriate response.

Roughly the same ratio, 11.4%, actually pursued a claim for damages. Sixty percent declined financial compensation altogether. Twenty six percent stated a figure that they thought would be a reasonable measure of financial compensation. The median value of the figures quoted was £41,700. THE NATIONAL HEALTH SYSTEM In the United Kingdom, the system providing the lion's share of health care to the populous is the NHS, or "National Health System." Until 1990, the NHS had "Crown Immunity from claims arising from clinical negligence. Individual doctors could be sued, but public institutions and the board or managers of NHS hospitals or clinics could not be held legally accountable. Doctors had to purchase separate liability insurance for this reason.3 Through 1989, there were three organizations that provided medical liability insurance to doctors: The Medical Defence Union (MDU), The Medical and Dental Defence Union of Scotland (MDDUS) and the Medical Practitioners Society (MPS).

In 1990, when Crown Immunity was replaced by Crown Indemnity, the Medical Insurance Agency (MIA) was formed. The MIA acted as a broker to provide liability insurance to groups of individuals and small practices. Otherwise, since NHS was now the responsible body, doctors were no longer required to purchase significant liability coverage and the MDU's policies dropped significantly.

Between 1990 and 1995 the number of claims filed against the NHS rose. Under the original statute, NHS bore the cost of defending and settling claims. Neither operating nor reserve budgets could withstand the strain, and insurance was not available for this purpose. The response to the situation was the creation of the CNST, or Clinical Negligence Scheme for NHS Trusts was created. The CNST was primarily concerned with risk management. Through the CNST and the NHSLA, or National Health Service Litigation Authority, claims are handled and NHS bodies are indemnified with respect to both clinical and non-clinical risks. The NHS scheme strictly covered medical negligence claims for the doctors and dentists employed under their auspices during their contracted duties, and not for instances of the following:

fatal accident injuries in Scotland disciplinary inquiries into professional conduct/competence good Samaritan work private work (off premises) general practice non-contractual work criminal defense

For this reason, many practitioners take on supplemental policies offered by the aforementioned medical defense organizations (MDOs), or the common providers for the private sector. Another incentive for supplemental coverage is the adjunct services offered by these providers. Help lines, educational services, access to case studies, media representation, external relations and risk management services are offered as part of the package on a "product selection" basis. For instance, occasional coverage for overseas practice or a student package can be purchased. Commercial coverage is varied, flexible and can be tailored towards a particular need, level of expertise, or specialty. OBSTACLES TO DUE PROCESS Calls for reform originate from both sides of the proverbial fence, both medical professionals and patients alike. In the April 8, 1998 transcripts of the Adjournment Debate in Parliament (Column 453-4), Mr. Nigel Beard (Bexleyheath and Crayford) stated:

Litigation on account of alleged medical negligence is now epidemic in the United States of America, and, although there are many fewer cases in the United Kingdom, the number here has been rising by about 15 per cent a year for the past five years. A survey in 1996 showed that 37 per cent of consultants and senior registrars had been sued at least once."

Mr. Beard, during his debate, cited two cases which both serve to demonstrate that the present system is essentially unfair to both patients and doctors. The first case cited was the case of Whitehouse v. Jordan. Mr. Jordan was called to Mrs. Whitehouse, whom he did not know previously, late at night as she was in labor. He attempted to deliver the baby using forceps a total of at least five times before deciding to perform a caesarean section. The child received brain damage during the attempted delivery and was severely handicapped. While there was no dispute that the brain damage occurred during the delivery, experts disagreed as to whether the Mr. Jordan exercised accepted medical practices in delivering the baby. It took eight years for the court to find Mr. Jordan not negligent. During that time Mrs. Whitehouse raised her handicapped child without recompense. The child was eleven years old at the time of the verdict.

In the second example, the case of Wilsher v. Essex, a young junior doctor mistakenly inserted a catheter into a vein instead of an artery. Even though he asked a senior registrar to check his actions and the registrar failed to notice the mistake, the junior doctor was judged not as a trainee but by the standards of his more experienced peers, and he was found negligent.

Mr. Baird further added that only a small percent of those suffering from a medical accident ever obtain compensation in what he refers to as a "litigation lottery." According to the Legal Aid Board, only 17 per cent of legally aided medical negligence actions are successful, as opposed to the figure of roughly 50% found in the previous report entitled "The Road to Enterprise Liability." Either pales in comparison to personal injury cases, including road and work accidents, where success rates are 85 to 90 per cent. This statistic supports the notion that establishing fault in medical cases is steeply more difficult than in other types of cases. At the conclusion of the Parliamentary Session, the Hon. Secretary of State exclaimed: "explanation, not litigation. Apologies, not accusations. Excellence, not excuses." Mr. Baird replied, "In the new NHS, that is just what we seek to achieve." Whether a matter of policy or practicality, tort reform is at the forefront of public policy debate. THE CASE FOR REFORM According to a report in the British Medical Journal in February of 2000 entitled "Mortality Variations as a Measure of General Practitioner Performance: Implications of the Shipman Case," "Changes in the organization of the NHS or in the management of health professionals are often made within the context of inquiries into specific medical catastrophes rather than through a measured process of policy formation." benefit of civil litigation to date has been the capacity of the law to provide a framework and a method of enforcing quality standards in healthcare. There is a concern that with the advent of reforms in the process of compensation, legal oversight of standards will be lost. According to J. McHale in "Quality in Healthcare: A Role for the Law?," "The law may provide some effective checks and balances to quality but, at the same time, the limits of the law as an effective regulator of quality have to be recognized because of the multifaceted nature of clinical judgment."4

The health service in the United Kingdom has been influenced over the last few years by the rhetoric of the need for "quality care" as part of the clinical governance structure.5

This rhetoric is, at least in part, borne of the diminished public confidence as a result of multiple catastrophic events at the hands of healthcare providers and subsequent public inquiries.

The report of an extensive public inquiry chaired by Professor Ian Kennedy concerning the conduct of pediatric cardiac services at Bristol Royal Infirmary and, in particular, the activities of the surgeon James Wisheart and his colleagues has recently been published.6 The findings of the Inquiry Report revealed that 30-35 children who underwent surgery between 1991 and 1995 died. Reasons cited included "substandard care with no dedicated children's intensive care unit, no mechanism to monitor quality adequately, and poor organization." In addition, the public inquiry into the events at the Royal Liverpool Children's Hospital (Alder Hey) investigated the unauthorized withholding of large quantities of human material including children's organs.7 Incidents such as these served to erode the public's trust of the quality of care, rallying calls for quality control, particularly with regard to this subset of medicine.

McHale further states that "healthcare practitioners owe a duty of care to their patients and, if they break that duty and harm results, then liability may accrue in the tort of negligence. English law does not only impose obligations in negligence upon the individual clinician but, in addition, the organization may itself be held to be liable in the tort of negligence through "direct liability" for failure to provide a "safe system."8

The legal standard of care in which healthcare practitioners owe to their patients has been rooted in professional practice -- the well-known Bolam test9 which, as stated by Judge McNair, provides that a doctor:

is not guilty of negligence if he has acted in accordance with a practice accepted as proper by a responsible body of medical men."

This reiterates the earlier concept of "accepted medical practice" as a ruler for good conduct. In the Bolitho case of 1997, the House of Lords made the following statement:

emphasize that in my view it will be very seldom right for a judge to reach the conclusion that views genuinely held by a competent medical expert are unreasonable."10

This statement implies that to contest the opinion of professional experts is, in practice, thorny. During a latter case involving the diagnosis and treatment in Pearce v United Bristol NHS Trust, Lord Woolf held that:

if there is a significant risk which would affect the judgment of a reasonable patient, then in the normal course it is the responsibility of a doctor to inform the patient of that significant risk if the information is needed so that the patient can determine for him or herself as to what course that she should adopt."

Although in that particular case negligence was unable to be established, the process provided a glimpse of an indication that a growing willingness to scrutinize standards of profession opinion were emerging.11 Jones added that, in the light of this case, it could be argued that "no reasonable doctor would fail to disclose a risk regarded as significant by a reasonable patient."12

Again, this implies that the doctor has a duty to uphold a standard of care in proper disclosure of a patient's options.

Clinical practice may also fall under such treatises as the Human Rights Act 1998, which allows the court to consider the provisions of the European Convention of Human Rights. While this statute does not elevate the English courts to the power of a Supreme Court, such as that in the U.S.A., "where legislation is in conflict with the Convention the court does have the power to make what is known as a "declaration of incompatibility" which may lead the Government to introduce remedial legislation.13 The Convention does not define specific "rights to health," but there are a number of rights which can be used in healthcare cases such as Article 2 (the right to life), Article 8 (the right to privacy of home and family life), Article 9 (freedom of conscience and religion), and Article 12 (the right to marry and found a family). The Convention rights may be raised in general legal proceedings or through a process of "judicial review" of decisions. Judicial review is the procedure enabling the challenge of the legality of the decisions of "public bodies" or bodies exercising public functions. Challenges may be brought under one of three broad headings: "illegality, irrationality, and procedural impropriety." 14

The powers of the Secretary of State for Health under the National Health Service Act 1977 have been subject to challenge under this heading. Section 3, for instance, provides that the Secretary of State shall provide:

to such extent as he considers necessary to meet all reasonable requirements: (a) hospital accommodation,... - medical, dental, nursing and ambulance services, (d) such other facilities for the care of expectant and nursing mothers and young children as he considers are appropriate..., [and] (e) such facilities for the prevention of illness, the care of persons suffering from illness and the aftercare of persons suffering from illness as he considers are appropriate...."

One major difficulty facing litigants in attempting to bring actions for judicial review is that, even if they succeed technically in establishing their case, this does not mean that material results may follow. It is simply a review of the decision and does not constitute an appeal mandating the professional body to challenge the situation. They may receive verbal and emotional validation, but it will do little to remedy a financial need or award a harm done. They may decide to take a different approach but, alternatively, they may reconsider the issue and reach an identical conclusion.

The courts can play an effective role in promoting quality in healthcare practice up to a point. The fact that the courts are no longer prepared to "rubber stamp" the views of clinical practitioners sends out a very important message and serves as a "deterrent factor." However, this is usually a reactive role, an instance after the fact. While clinicians may seek guidance on a particular issue -- for example, whether to sterilize a mentally handicapped woman or switch off a life support system, such guidance is sought comparatively rarely. Moreover, recourse to the courts is an exceedingly protracted and expensive way to address these questions.

Concerns over the present system of clinical negligence have led the Government to issue a consultation paper "Clinical negligence: what are the issues and options for reform?" It should be noted that litigation may not always be the vehicle to facilitate the best healthcare practice, as it may simply have the effect of encouraging defensive medicine or to drive practitioners from certain areas of clinical practice known to carry particular risks -- for example, obstetrics and gynecology. Litigation is not the only method through which standards in healthcare practice may be facilitated and promoted; an arguably more effective mechanism is through the use of law to establish regulatory mechanisms.

THE REGULATORY ENVIRONMENT

Many statutory regulatory structures for healthcare professionals are in place in the U.K., as delineated in the following table:

The Medical Act 1983 and the Nursing, Midwives and Health Visitors Act 1997

Broad brush stroke for definition of standards

Council of Healthcare Regulators (Council for the Regulation of Healthcare Professionals)

Recommended by the Bristol Inquiry Report and part of the NHS Plan; should represent each healthcare professional group in areas of education, training and professional development

Section 18 of the Health Act 1999

Applies to health authorities, primary care trusts, and NHS trusts, which must monitor the quality of care to individuals. It is enforceable through the power of the Secretary of State and the Commission for Health Improvement (CHI), a new body established under the 1999 Act.

National Institute for Clinical Excellence (NICE)

NICE provides guidance as to "best practice" for patients, health professionals, and the public, via clinical audits. NICE is particularly involved with the implementation of technology medicines, diagnostic devices, and procedures.

The CHI was established under Section 19 of the Health Act 1999

Is involved with the guidelines issued by NICE, and visits each NHS trust, primary care trust, and health authority every four years. It also provides oversight to NHS with regard to the identification of serious clinical problems and incident inquiries.

Mental Health Act Commission, established under the Mental Health Act 1983

Develops the Mental Health Act Code of Practice and makes hospital visits for monitoring purposes.

Human Fertilization and Embryology Authority established under the Human Fertilization and Embryology Act 1990

Licenses clinics involved in infertility services and embryo research. It also issues guidance in the form of a Code of Practice.

Live Transplant Regulatory Authority established under the Human Organ Transplants Act 1989.

Scrutinizes the conduct of transplant operations between unrelated donors.

Data Protection Act 1998

This legislation was enacted following the European Data Protection Directive, which developed over concerns for individual privacy. The operation of the Act is overseen by the Information Commissioner.

The Health and Safety at Work Act 1974

Perhaps the oldest of such regulatory mechanisms.

Today the Public Interest Disclosure Act 1998

Also known as the whistle-blowers act.

National Patient Safety Agency.

Recently created as a result of the Bristol Inquiry Report.

National Clinical Assessment Authority

Conducts annual appraisal of physicians; requires ongoing training catch twenty-two can occur in that while the law can be helpful at enforcing a standard of care, the multitude of regulatory bodies can assist in defining those standards. However, making sense of the agencies, their roles and resources can become cumbersome and confusing in practice. This does not include Professional Agencies that develop guidelines for standards of care, from the Medical Research Council to the Royal Colleges. Co-ordination and consistency among bodies is important, as the Bristol Inquiry Report recognized when it recommended either the creation of an independent overarching body or an expanded role for NICE.

The issue of standards of care is not strictly a matter of litigation and regulation. While checks and balances can be attained through such avenues, ethical issues and circumstances sometimes require a case-by-case approach to just resolution. For instance, the paths crossed by The Human Fertilization and Embryology Authority reach farther than the boundaries of textbook definition when dealing with modern reproductive technologies and embryo research, and reaches toward social policy and collective conscience. McHale notes: "The need for constant reassessment of many of these types of decisions in the light of technological developments and developing ethical approaches to such new technologies indicates only too clearly the limits of the law as a responsive regulator. Frank Dobson was surely overstating the point when he said that the only place for a lawyer in the NHS was on the operating table!"

THE RISING COST OF LITIGATION

The cost associated with clinical negligence and medical malpractice is not limited to the rise in claims, but rather refers to the rising cost of insurance and legal representation coupled with the exponential growth in the size of awards. According the authors of the "Road to Enterprise Liability": "A recent advertisement resembled the "have go" nature of solicitor's advertising featuring the slogan "If there's blame, there's a claim." The authors lament: "It is regrettable that many doctors today must inevitably regard the person before them as part patient and part potential litigant."

The price of litigation is high. Lord Woolf in his 1997 review of civil litigation observed that there were 20,000 claims outstanding against the NHS, with over 90% of those litigants on legal aid. Could this be related to the Legal Aid Board's findings that stated that only 17 per cent of legally aided medical negligence actions are successful, as opposed to the figure of roughly 50% found in the previous report entitled "The Road to Enterprise Liability?." Is there a correlation between the quality of legal representation and the likelihood of winning a case?

Through the legal aid process, the NHS cannot recoup legal costs of cases where the claimants lose, resulting in a significant financial burden to the agency. In1995-96, it is estimated that the NHS paid out £150 million in medical negligence settlements, with £56 million coming from London regions. The Legal Aid Board estimated that in 1996-97, 32 claimants received payments in excess of £500,000. The average damages awarded totaled £4,107, a figure considerably less than the cost of the legal expense itself.

Poor clinical risk management is estimated to cost the NHS in the UK some £100 million per annum and, with an increasingly litigious population, this figure is expected to rise sharply in coming years.15

Gareth Thomas, reporting in Westminster Hall estimated that there were 850,000 incidents a year. While many claims were modest financially, he noted that they congest the system and consume time. The cost of additional hospital stays and treatments from adverse incidents must also be taken into account. In 2000, that was estimated at £2 billion.

A notable statistic provided by the NAO is that 65% of awards below £50,000 had associated costs that exceeded the damages awarded. In 1999-2000, the NHS spent £373 million on costs and damages in settling clinical negligence claims. The NHS is projecting a cumulative cost of £4.4 billion related to clinical negligence, which relates to outstanding anticipated claims. When valuing claims, it is necessary to take account of a point that has been made by Professor Dingwall of Nottingham University, who said:

the estimate of outstanding claims is not based on conventional insurance principles. When a commercial insurer receives a claim, this is not entered onto the books at its claimed value. The company makes a judgement about the likely probability of success and discounts the value of the claim by the value of that probability. This estimate may be revised... As the case develops and the evidence emerges. The NHS enters claims straight onto the books at the value asserted by the claimant."

While there may be some debate over exact figures, there is a consensus that the cost of litigation is rising, and policy makers are calling for reform. Largely due to the cost borne by the NHS in relation to medical liability claims, significant reforms have been initiated and much emphasis has switched to prevention and risk management. Although it is unlikely that the tort system will be entirely replaced in the near future, the concept of a no-fault system is being examined in the interest of speeding up the legal process. In the interim, in 1994, Lord Woolf accepted the task of conducting a review and making recommendations for some short-term internal reforms to the existing system.

LORD WOOLF'S REFORMS

In Lord Woolf's review, he examined the system of civil justice and developed some benchmarks for reform, which have been largely implemented. Lord Woolf's recommendations resulted in changes to the system that largely affected how medical liability claims are handled. The review sought to find ways to reduce the complexity and length of time involved in litigation while improving access to justice and streamlining the costs involved. In Lord Woolf's review, the problems with the old system were identified as follows:16 litigation was too expensive, in that costs often exceeded the value of the claim; litigation was too slow in bringing a case to a conclusion; there was a lack of equality between litigants who are wealthy and those who are not; litigation was too uncertain in terms of time and cost; the system was incomprehensible to many litigants; the system was too fragmented since there was no clear overall responsibility for the administration of civil justice; litigation was too adversarial as cases were run by the parties and not by the courts with the rules all too often ignored by the parties and not enforced by the courts.

In examing the procedures and technology inherent in the old system, he noted that progress would require a "radical change of culture for all concerned." He set forth broad underlying principles in his interim report which would serve as the drivers for a reformed civil justice system. These included notions of fairness and justice, equal access, proportionality, speed, comprehension, responsiveness, effectiveness, and the principle of treating like cases alike. Woolf stated:

All of the evidence which I have received in the course of my Inquiry indicates that the present system does not conform with or support the principles which I [have] identified... I have concluded that the unrestrained adversarial culture of the present system is to a large extent responsible for this."

The reforms proposed by Woolf contain the following procedural initiatives:

Pre-Action Protocols - provides a vehicle for both parties to try and resolve a dispute prior to issuing any claims.

Part 36 Offers - Allows claimants and defendants to offer to settle.

Single Joint Experts - to reduce the costs of experts and to reduce the adversarial nature of expert testimony.

Case Management - to administer cases justly - three tracks are provided for the streamlining of case management.

Small Claims - earmarked for cases limited to £5,000. Personal injury and housing disrepair cases of less than £1,000 were excluded.

Fast Track - delineates cases between £5,001 and £15,000, with timetables slated grant trials in 20-30 weeks.

Multi-Track - for cases over £15,000, and those cases too complex for Fast Track.

Fixed Costs - as applied to Fast Track cases, and benchmark costs for Multi-Track cases.

Rules - rules of procedure would be consistent throughout both the High Court and the County Courts.

ADR - The option of Alternative Dispute Resolution would be encouraged as a deterrent to claims resolution.

Following Lord Woolf's final report entitled "Access to Justice" which appeared in July of 1996, his recommended procedural changes were implented in April of 1999, establishing the Law Society Woolf Network. Thanks to Lord Woolf's reforms, the improvements to the claims management process were characterized by earlier investigation and disclosure of information in order to substantiate a claim's basis and to eliminate delays and reduce costs overall. For instance, guidelines to follow when submitting a claim are clearly outlined to the parties involved. Penalties can be applied for failure to adhere to the timetables involved in submitting a claim, which serve to enforce the expedience the reforms were designed to initiate.

The pre-action protocols and fast-track stucture for smaller claims encourages early settlement of a percentage of claims that, under the previous system, would have clogged the court system for a prolonged period of years. With no historical data regarding the economic impact of structured settlements, a system was set in place to monitor the results of the reforms via the Law Society Woolf Network. The Network consists of approximately 130 solicitors who made a semi-annual commitment to respond to evaluation surveys. The third survey was pubished in February of 2001. 80% of the respondents felt the reforms were an improvement on the previous system with comments such as: "the reforms increased settlement and the spirit of co-operation" and "the reforms make the process quicker and less adversarial."17

Emerging Findings, a report of the Lord Chancellor's Department was published in March of 2001. The report looked at the procedural reforms and measured their success according to certain criteria, such as the number of claims issued. They found that there was a peak early in 1999 and then a large drop in claims immediately after the introduction of the Civil Procedure Rules. Further, the trend reflected a gradual decline throughout 2001. The report cites that, although month by month the figures vary, this overall downward trend has now been stable for 3 years since April 1999 and would appear to be well established.

An important indicator noted in the Access to Justice report was the issue of controlling costs. There is anecdotal evidence from the Supreme Court Costs Office that experts fees may have increased which is confirmed in 'More Civil Justice?' which reports an increase in the median cost of first medical reports in personal injury cases as having risen from £190 to £280. In addition, the introduction of the £50,000 minimum for issue in the High Court in April 1999 will have increased the average value of claims, so a corresponding increase in average costs is to be expected.

Figure 13: SCCO figures

Number of Bills

Total brought in Average brought in 1994

1995

1996

1997

1998

1999

2000

2001

2050

73.7m

£84.9m

£80.5m

£93.8m

£87.2m

£77.2m

£87.4m

£87.2m

13,095

£15,327

£20,515

£30,151

£31,594

£29,934

£42,634

£47,665

Speaking at a Law Society Civil Litigation Conference in January 2002, Lord Phillips described the assessment of costs as the 'Achilles heel' of the reforms that were designed to make the courts faster, cheaper and simpler. "It's a very undesirable state of affairs - urgent attention was needed to resolve the problems which would prove very difficult to sort out. Everyone recognises now that the task of assessing costs can be very often more difficult than the task of resolving disputes."

Following a Costs Forum in December 2001, the Civil Justice Council set up a Predictable Costs Working Group under the chair of Professor John Peysner to consider the options and data required for introducing a predictable costs regime for recoverable costs in the fast track and the accompanying pre-action protocol. The Group is focussing on personal injury road traffic accident cases under £15,000 and is due to report by early 2003.

MORE COST CONTROLS

To mitigate the cost of legal aid, the Access to Justice Bill was passed in 2000. Whereas traditionally legal aid provided funding for a claimant's legal action entirely through state funding, under the new Bill certain cases would qualify for fee arrangements, with legal aid withdrawn. The initiative was designed to reduce the number of unwarranted claims. The fee arrangements, which existed in concept prior to the enactment of the bill, involve passing on some of the risk to the solicitor, who agrees in advance that if the case succeeds, the solicitor will receive a success fee of a pre-determined percentage. The fee should be recoverable from the other side. If the case is unsuccessful, the solicitor understands that the costs may be unrecoverable. This is similar to the American system of contingency law, (with the exception that the fees prescribed have limits), whereas in many personal injury cases, the attorney agrees to collect a fee based on a percentage of the successful outcome.

THE UNITED STATES

INTRODUCTION

For the same reasons the United Kingdom is exploring options for controlling the costs of civil litigation in medical malpractice, other countries around the world are delving into scenarios for reform. In the United States, commercial insurers make up 55% of the top twenty providers based on statistics from 2000 direct premium volumes. It should be noted that in 2002, St. Paul's, the number one writer in the year 2000 representing approximately $580 million in premium, stopped writing medical malpractice policies. Additional declines (Phico - 190 million in premium, Frontier - 70 million, and MIIX - 210 million) account for an estimated loss of 15% of total market capacity.

The rest of the market is characterized by healthcare provider-owned companies and self-insured/captive vehicles. Most states have a physician-owned insurance provider such as New York's MLMIC Group, the second largest in the U.S. representing about $500 million in total premiums. Since voluntary market companies can refuse to insure an applicant, many states have also established JUA's (Joint Underwiting Associations) to provide coverage to those who cannot obtain it through conventional sources.

Also, many states have established special funds in response to the types of claims that exceed certain thresholds, such as Catastrophe Funds or special Patient Compensation Funds. Virginia and Florida have established special funds on a no-fault to compensate neurologically impaired babies. These funds are in place to mitigate the impact of very large claims and will be explored in further detail under the concept of examining no-fault reform. The premiums for these programs are passed on to healthcare providers.

As for the types of coverage, there is a trend of moving away from occurrence-based coverage to claims made coverage. Traditionally the occurrence-based coverage was associated with the captive/self insured market. Provider owned companies emphasise risk management and in some cases offer support services such as billing and transcription, much like the support services provided by the U.K.'s MDOs. The most common coverage however remains professional liability insurance.

Premiums vary widely according to several factors:

type of insurance, i.e., occurrence vs. claims made type of exposure

Hospital (ex: acute bed rate is higher than rehabilitation bed rate)

Physician

Type of medical specialty (i.e., neurosurgery and OBGYN are higher than dermatology)

Standard limits of coverage for physicians are: $1 million per claim, $3 million per "annual aggregate indemnity limits with unlimited defense coverage. After a five-year period of flat premium rates, rates have risen signifcantly during the period from 2001-2002. According to "A Short Guide To Understanding Today's Medical Malpractice Insurance "Crisis" (And Useful Questions To Ask)" which was issued by the Center for Justice and Democracy on September 25, 2002, the rise in the rate of insurance premiums was not in correlation to a rise in claims or the amount of awards associated with claims. In fact, the report went so far as to say there was no relationship whatsoever, but rather, that insurance companies simply took advantage of the system of free enterprise and of the ability to operate in an environment free of oversight from "federal agencies, federal regulatory laws or federal anti-trust prohibitions (allowing them to price-fix, for which other business leaders could serve jail time), and subject to virtually no oversight by the Federal Trade Commission (unless specifically requested to do so by a majority of the House and Senate Commerce Committees.)" The report adds:

In most states, the insurance industry is subject to weak state regulatory authority, and data disclosure requirements for insurers are almost non-existent. Even in states where insurance departments have adequate authority over rates, offices usually lack a sufficient number of actuaries and other staff to exercise proper oversight."

Jury scholar Valerie P. Hans, sociology and criminal justice professor at the University of Delaware, recently wrote in the Wilmington News Journal:

Juries aren't perfect, but they make a convenient target even when other factors are at the root of the problem. In Delaware and elsewhere, [juries] most frequently find for the doctor.... The medical malpractice win rate is likely low because of the jury's trust in doctors the jury's tendency to doubt plaintiff claims and settlement patterns. When plaintiffs do prevail, jury awards are positively related to the severity of injury. The more serious the injury, the higher the award, which is what we'd expect if jurors were basing their awards on appropriate factors such as the cost of medical care and lost income....Pain and suffering awards also parallel the severity of the injury."

2001 study by the Consumer Federation of America states that the average claim paid out by medical malpractice insurance companies is $30,000 and that the estimate has remained unchanged for the last decade. They further estimate that total insurance payouts have ranged from $2.5 billion to $4 billion per year.18 The study went on to note that victims who present cases before juries win only 23% of the time, with the majority of cases receiving no award at all.

THE ST. PAUL'S PULLOUT

When St. Paul's, the largest writer of medical malpractice policies, ceased to offer the coverage in 2001-2002, it was the a consequence of the attention that had been focused on the administration of this type of coverage. A 1989 investigation of St. Paul's and one other insurer initiated by Michael Hatch, then Commerce Commissioner of Minnesota, revealed that over a six-year period premiums had increased 300% while claims had not. Hatch was quoted as saying the reason for the increase was: "Because they had the opportunity to do it. There was a limited market. People need coverage. The companies knew they had a corner on it, and they raised their rates accordingly." In response, a group of surgeons from Charleston jointly sued St. Paul for "grossly poor management." St. Paul's consequently dropped that type of coverage as part of its portfolio.

The Wall Street Journal shed some light on the historical practices of St. Paul's in its investigative article, which appeared in the June 24, 2002 issue. According to the Journal, during the eighties the firm overestimated the amount of escrow it needed to set aside for paying malpractice claims. It later misrepresented the surplus by releasing the reserve funds (an estimated $1.1 billion) as profits on paper. Since St. Paul's represented an estimated 20% of the total market at the time, the inflated profits looked attractive to companies seeking to enter the market.

With the law of supply and demand delineating free market enterprise, new insurers cut rates to enter the market and attract new business. This created a flip-flop effect, whereby ultimately the rates charged were in some cases insufficient to cover the cost of malpractice claims, leading to the financial collapse of some insurers, hence the number of companies ceasing to operate in the industry, like St. Paul's, Phico, Frontier and MIIX, representing a combined $1 billion in lost coverage, constituting a virtual insurance crises.

THE INSURANCE INDUSTRY

The driving force in any American industry is profit. Whether the company manufactures "widgets" or provides a more touchy-feely service like psychiatric care or medical care, a service that infers a higher order of consciousness, it is still first and foremost a business and as such is subject to the scrutiny of financial benchmarks. No matter how altruistic an organization's purpose is in America, it's real purpose in life is financial gain, unless it is structured as a non-profit organization (501C3) or there is a volunteer effort free of financial compensation. The insurance industry is no exception, and in any industry when the bottom line suffers, those accountable pay focused attention on that bottom line. A review of the cyclical nature of the economics of the insurance industry may shed some light on the driving (economic) forces behind the situation.

Insurers make money not from premiums themselves, but from the investment income garnered from those premiums. When interest rates are high, insurers cut premium rates in order to compete for a greater pool of funds to invest, the idea being to maximize return. When interest rates drop or the stock market falters, insurers increase premiums to compensate for the loss in investment income. During the decade of the 1990's, inflation remained stable, interest rates remained relatively high and insurers followed suit by cutting rates. The Wall Street Journal's investigative report stated:

price war that began in the early 1990s led insurers to sell malpractice coverage to obstetrician-gynecologists at rates that proved inadequate to cover claims.... Some of these carriers had rushed into malpractice coverage because an accounting practice widely used in the industry made the area seem more profitable in the early 1990s than it really was. A decade of short-sighted price slashing led to industry losses of nearly $3 billion last year." Moreover, "[i]n at least one case, aggressive pricing allegedly crossed the line into fraud. Regardless of the level of...tort reform, the fact remains that if insurance policies are consistently under priced, the insurer will lose money."

The reaction to St. Paul's disruption of medical claims insurance was not a positive one. The CJD (Center for Justice and Democracy) reports that in May of 2002, the Nevada Attorney General's office filed an administrative complaint against St. Paul in connection with its decision pull out of the medical malpractice market. The complaint cites St. Paul for alleged unlawful business practices, unauthorized policy modifications, payment of commissions to unlicensed agents, unlawful policy cancellations and non-renewals and failure to return unearned premium payments. In the same month St. Paul's was placed on credit watch and in July of the same year, Standard and Poor's lowered the company's ratings based on its handling of environmental cases.

Phico, who represented approximately $190 million in premiums and was the nation's seventh-largest malpractice insurer, conversely under-estimated the escrow needed to cover malpractice premiums and was forced into bankruptcy after suffering consecutive losses due to unfounded case awards. A civil fraud suit was filed against the Pennsylvania Hospital Insurance Company in 2001 for "allegedly misleading the adequacy of Phico's premium rates and funds set aside to pay claims" after the company had registered mounting losses on cases related to practitioners and nursing homes nation-wide.19

All of this history paints a different picture of the situation when compared to the situation in the U.K., a more opportunistic and insurance industry led scenario. Significant rises in insurance premiums have occurred three times in the last 30 years: in the mid 1970s, again in the mid-1980s, and now today. Each time interest rates fall and the investment market for insurers becomes weak, insurers blame jury awards for rate increases. To buy this reasoning, one would have to accept the position that jury awards were high in the mid-seventies, declined, then were high again in the mid-eighties, then declined and are now high again.

In the mid-seventies, the insurance industry devoted over $5 million on targeted advertising which was spread over eighteen national publications. The ads claimed that large jury awards adversely affected the pocketbooks of all citizens through rate increases which get passed on to consumers through the cost of medical care, and subsequently, medical coverage. The ad featured Crum and Foster's "lawnmower as a hedge clipper," citing an example where an individual was awarded millions by a jury after improperly using a power lawnmower to trim hedges. Both Business Insurance and a Congressional Committee found the case to be fictitious.

TORT REFORM IN AMERICA

In response to the insurance industry's indications that large jury awards were driving up insurance premiums, California was the state who, in the mid-seventies, most vigorously embraced tort reform and enacted severe tort restrictions for patients who have been injured by malpractice. The law placed a $250,000 ceiling on the amount a patient could recover in non-economic compensation regardless of how egregious the malpractice or serious the injury. The impact of the cap on damages to patients has been profound.

In once case, a twelve-year-old patient named Steven Olsen is blind and brain-damaged as the result of a lack of adequate care he received when he was in the hospital at the age of two. The hospital refused to provide a CAT scan (which would have cost $800) that would have detected a growing abnormality in his brain. In 2001 Steven had 74 doctor visits, 164 physical and speech therapy appointments, and three trips to the emergency room. Steven's mother had to lose her job to care for him full time. A jury awarded Steven $7.1 million in non-economic compensation for his condition and its consequences. However, the judge was forced to reduce the amount to $250,000, due to the new provision in the law, outraging the jurors.

In a story that makes the hair on one's arm stand on end, in 1975 an Indiana lobbyist named Frank Cornelius, was principally involved in the passage of a $500,000 cap on medical malpractice awards as well as the elimination of damages for pain and suffering in the state of Indiana. Cornelius' former clients had been prominent members of the Insurance Institute of Indiana. In 1989, Cornelius himself suffered from medical negligence that rendered him confined to a wheelchair, with respirator-assisted breathing and persistent physical pain. His combined medical expenses and lost wages totaled over $5 million, but thanks to his successful lobbying days, his remedy through the courts was limited to $500,000. He wrote to the New York Times on October 7, 1994, saying that he now "rue[s] that accomplishment."

In an op-ed that appeared in the New York Times on December 25th, 1995, Former Reagan administration official Richard Levine wrote:

Nearly two years ago I incurred catastrophic damage to my face due to malpractice. This has left me in a state of near-constant agony....I would beg Congress to limit my suffering. I would beg them to limit the suffering of those who have been blinded, paralyzed or disfigured by incompetence. This they cannot do, but this Congress still sees fit to limit people's ability to recover that which can never be adequately be recovered and to set the limit at $250,000."

Richard Levine served eight years as the youngest member of Ronald Reagan's National Security Council staff and the youngest Deputy Assistant Secretary of the Navy. The $250,000 provision has been dubbed one of the most Draconian in the nation, and insurance lobbies have campaigned to spread the law, claiming that the cap has kept the cost of premiums down. The editor of the Medical Liability Monitor was quoted in the Los Angeles Times as saying that the insurance carriers are altering her published data. Although the Medical Liability Monitor conducts surveys among insurance carriers regarding their rates, Carol Golin, the publication's editor claims that average premiums are not calculated because of the differences in circumstances and jurisdictions among states, yet the Californian's for Patient Protection are claiming, based on her statistics, that California doctors are paying less than their counterparts in Florida, Illinois, New York, Texas, and Michigan.20

According to the Consumer Watchdog Organization (consumerwatchdog.org) the average premium per doctor in California in the year 2000 was only 8.2% below that of the nation ($7,200.61 vs. $7,843.75). But more significantly, the average malpractice premium in California between 1991 and 2000 actually grew more quickly (3.5%), than it did in the nation overall (1.9%.) According to actuary

J. Robert Hunter of the Consumer Federation of America, "there is not much difference in the rates or the rate of change between California and the nation based on the latest decade of experience."21 This finding was supported by the 1999 study by the Center for Justice & Democracy entitled "Premium Deceit: The Failure of Tort Reform to Cut Insurance Prices. The study examined the impact of tort restrictions on property/casualty insurance rates on every state in the nation, including California, since the mid-eighties. Essentially the study reiterated that there was no correlation between tort reform and insurance rates.

California's Foundation for Taxpayer and Consumer Rights has reported that insurers are the only parties to have profited from tort reform law. The Consumer Rights groups states that, since the mid-eighties, California malpractice insurers have paid less than fifty cents in claims for every dollar they have taken in through premiums. By contrast, malpractice insurers nationally have typically paid out in claims more than two-thirds of every premium dollar.

In 1986 Insurance Trade Associations and insurance companies like Aetna, Geico, Nationwide and Transamerica joined with corporations to form the American Tort Reform Association (ATRA). The ATRA membership was heavily weighted with insurance companies, insurance-related organizations, those that worked for insurance companies and law firms that represented insurers. In the same year, the Insurance Information Institute (III) purchased $6.5 million worth of print and television advertising in a targeted campaign to reach the bulk of the adult American population. The ads were strategically designed to alter the perception of the American public by switching the focus from an "insurance crisis" to one of a "lawsuit crises." The ATRA, citing unaffordable or unavailable insurance, recommend "tort reform" as the only way for insurance rates to fall. Encouraged by the insurance industry as a way to reduce skyrocketing insurance rates, 46 states passed "tort reforms."

The following year, twelve attorney generals filed an antitrust class action lawsuit against the insurance industry. They contended that insurance companies like Aetna, Cigna, Hartford and even Lloyd's of London were in collusion to create the insurance crises of the mid-eighties. They claimed the insurers restricted coverage to commercial customers, raised prices, and fabricated an environment through utilizing advertising capacity that convinced states to enact ineffective tort reforms. The case settled in 1995 for $36 million.

After the settlement, the insurance industry lessened its leadership role in the advocacy for tort reform. In 1994, ATRA advisor Neil Cohen told the Public Affairs Council audience to hide insurance industry involvement in "tort reform." Cohen said, "[K]eep high-profile corporate clients carefully hidden from public view, since this would detract from the illusion that 'tort reform' exploded spontaneously among outraged citizens and small businesses."22

In a flawed "the grass is greener on the other side of the channel" approach, the tort reforms failed to be the panacea it had promised. A July 2002 study by the National Academy of State Health Policy (funded by the Robert Wood Johnson Foundation) found that "[t]hemove toward more restrictive tort reform does not address the complexity of the problem. Previous rounds of tort reform that followed the malpractice insurance crises of the 1970s and 1980s have not succeeded in preventing periodic and dramatic rises in insurance premiums.23 Donald J. Zuk, chief executive of SCPIE Holdings Inc., a leading malpractice insurer in California, claims: "I don't like to hear insurance-company executives say it's the tort [injury-law] system - it's self-inflicted."

FLEEING PHYSICIANS

Another disturbing trend in the medical insurance industry is the resounding war cry that doctors will be forced to quit practicing riskier medicine or move to another state each time premiums rise exponentially. In the mid-1980s, news headlines mirrored those of today, like this article that appeared in the St. Petersburg Times on May 7, 1987: "Doctors are threatening to quit practicing some specialties or move out of the state while South Florida hospitals and trauma centers have threatened to shut down or have curtailed services." In several states, contrary to claims in each and every one of them in the press that physicians are fleeing the neighborhood, this theory has had some solid holes poked through it by these revealing facts.

Mississippi: The state has gained 564 doctors over the past five years. While Mississippi still ranks last in the nation with regard to the number of doctors per capita, it has made dramatic gains since 1995. Only Alabama, Alaska, Arkansas and South Dakota have grown faster in physician population. (The Biloxi Sun Herald, August, 2002)

New York: New York is ranked third in the nation in the number of obstetricians and gynecologists per capita as opposed to California (ranked 27th). In addition, the number of physicians practicing in New York State is increasing at a rate faster than the national average.24

Pennsylvania: ranked ninth highest nationally for physician concentration, a top ten position it has held since 1992. In the state, there were 318 doctors for every 100,000 residents, the ninth highest nationally for physician concentration, a top-10 position it has held since 1992. There were 318 doctors for every 100,000 residents in 2000, according to the American Medical Association."25

West Virginia: The number of doctors in West Virginia has increased 14.3% between 1990 and 2000. The rate of increase is 20 times greater than that of the population.

It has come to light in recent years that Medicare/Medicaid reimbursement is more of a reason for a doctor to relocate than because of medical malpractice lawsuits or tort law. According to a meeting of the National Conference of State Legislatures, doctors in Washington State, for example, claimed that their counterparts in Texas, Alabama, Florida and Mississippi are receiving reimbursements at a higher rate, and there are disproportionate earnings in this regard across states. Further, in response to the poor system of reimbursements, doctors are turning away new Medicare and Medicaid patients in many states this year. "2002 Doctor shortage has arrived," Bellingham Herald, July 16, 2002. It is this situation that more adequately speaks to the lack of medical care and access to prescriptions for the elderly and poor, and not the touted cost of medical malpractice premiums and litigation.

According to the Census Bureau, California is the only state that is falling in the number of per capita ratio of doctors to population. Again, the California Medical Association blames the physician exodus on low reimbursements, according to the American Medical News' August 14 headline news story, "Doctors Fleeing California." In addition, states like Nevada claim that decreasing reimbursement rates from managed care companies and health maintenance organizations are causing financial problems for the doctors, particularly obstetricians and specialty surgeons.

At the start of a new decade, the cycle repeats itself and the healthcare industry is facing the same issues as before. At the turn of the decade the market turned, with the 'fed' cutting interest rates repeatedly. Insurers predictably raised rates in response to diminishing investment pools. In some cases, rates for certain coverage were raised exponentially in response to the September 11th terrorist attacks and the perceived excess risk now evident due to the advent of terrorism on American soil. We've identified the characteristics of the insurance industry, the statistics surrounding the issue of rising claims, fleeing doctors, and the source of increases in coverage premiums.

In truth, medical malpractice constitutes a fraction of total health care costs (.55% according to a study by the Consumer Federation of America). Robert Hunter, former Texas Insurance Commissioner and Federal Insurance Administrator, said, "Medical malpractice insurance is amazing value, considering that it covers all medical injuries for about one-half of one percent of health system costs!" As an economic measure, medical error exceeds the cost of negligence in hospitals in terms of lost income, lost household production, disability and health care costs combined than the cost of negligence in hospitals, which is estimated to be between $17 billion and $29 billion each year, of which health care costs represent over one-half. Now let's look at the incidence of malpractice itself. What are the true rates of death and injury sustained at the hands of another in the medical profession in the United States?

STATISTICS FOR ERROR, INJURY AND DEATH

One analogy given for the number of patients estimated to die annually from medical injury in the U.S. is the equivalent of three jumbo jets filled with patients crashing every two days.26 The National Academy of Sciences Institute of Medicine researchers examined the results of two studies, one conducted in Colorado and Utah and an earlier study conducted in New York, which addressed the issue of deaths in hospitals due to medical errors. The Academy applied the findings of the studies to the 33.5 million hospital admissions nationwide in 1997. The results revealed that at least 44,000 Americans die each year as a direct result of medical error. The New York study indicated that the number may be as high as 98,000 (or a 3.4% mortality rate, compared to 1.1% in Britain according to the British Medical Journal [www.bmj.com]).Using the lower estimate of 44,000, deaths due to medical errors rank eighth as one of the leading causes of death in America. The number of deaths due to medical error per annum exceed those from motor vehicle accidents (43,458), breast cancer (42,297) or AIDS (16,516)."27

These figures only represent a percentage of the population since hospital patients are only a portion of those receiving some type of medical treatment (outpatient, private practice, ambulatory, home care, nursing homes, etc.) The research further revealed that errors involving administering medication (accidental poisoning by drugs, medicaments and biologicals, occurring either in or out of the hospital), account for over 7,000 deaths annually, as compared with less than 3,000 people in 1983, almost a 300% increase." Researchers also discovered that mistakes occurred in nearly one of five doses in a typical, 300-bed hospital, an error rate of 20%.28 Yet eight times as many patients are injured by medical malpractice as ever file a claim; 16 times as many suffer injuries as receive any compensation (figures mirroring the Harvard University Study). The National Center for State Courts has stated that there has been no change in the volume of medical malpractice cases in the last five years.

According to the Public Citizen's Health Research Group, of 770,320 licensed medical doctors, 2.6% (just over twenty thousand) have been cited by a state medical disciplinary board or an appropriate governing body. Of those cited, less than one half of 1% face any serious state sanctions. The 2,696 serious disciplinary actions in 1999 by the state medical boards pales in comparison to statistics of 98,000 deaths and 1,239,500 "adverse effects" (using the Harvard methodology of 3.7 in every 100 patients as applied to 33.5 million hospitalizations) in hospitals alone, provides evidence that hospitals and/or physicians are not being held accountable in relation to the proportion of malpractice and negligence that is occurring.

THE CALL FOR REFORM IN 2003: A FAMILIAR REFRAIN

It has often been said that the United States is actually comprised of fifty small countries. When dealing with legal issues at the state level, this can seem a truism. State to state laws can vary widely, sometimes making it seem unfair for a situation to hold true according to the laws imposed by one state, and false if applied to another. Almost every state has enacted some type of statutory reform in an effort to discourage filing and adjudication of frivolous lawsuits and to attempt to mitigate the cost of rising premiums.

Congress has also been addressing these reforms through legislation.

Common provisions in state-level reforms include measures such as: 1. A statue of limitations for filing medical liability claims, and 2. damage caps, i.e., ceilings on the amount of damages that may be awarded on any specific claim. Currently, 25 states have enforceable damage caps. Supreme Courts in Illinois, Ohio, Oregon and Washington issued rulings to this effect. In other states - among them Arizona and Wyoming - statutes have not been enacted because the state constitution prohibits capping damages. A complete list of state-by-state reforms is attached in Appendix A.

A familiar refrain is heard by the American Medical Association Lobby, and frighteningly the script is all too familiar: In a press release dated January 16th, 2003 entitled "AMA Supports President's Urgent Call For Medical Liability Reform," the rhetoric is recognizable. History repeats itself once again as the call for medical liability reform boils down to an impassioned image of fleeing doctors, a loss of critical specialized services, monumental tort awards, and a system now cleverly dubbed one of "jackpot justice." The reforms call for modeling the California's MICRA ("Medical Injury Compensation Reform Act") law implemented in 1975, including the $250,000 cap on non-economic damages. To support its propositions, the AMA claims that California's physician insurance premiums have risen 167% since 1975 as compared to a 505% increase for the rest of the country in what seems like a broad generalization.

President Bush addressed the issue of Medical Liability Reform in a speech delivered at the University of Scranton. In his speech, he made the following familiar points:

Our medical liability system is broken, and therefore, a lot of Americans don't have access to affordable health care. Health care costs rise for a lot of reasons. Research is costly. Technologies cost money, and they're expensive. And some of the costs are necessary. But there are some costs that are unnecessary as far as I'm concerned. And the problem of those unnecessary costs don't start in the waiting room, or the operating room, they're in the courtroom. (Applause.) We're a litigious society; everybody is suing, it seems like. There are too many lawsuits in America, and there are too many lawsuits filed against doctors and hospitals without merit. (Applause.)"

Jack Brooks is a respected pathologist at the University of Pennsylvania Hospital. He was there today. He went to Buffalo. He moved back to his state, but he was turned down by three insurers when he came back to Pennsylvania. The fourth insurer's quote was just too high, he couldn't afford it. Jack Brooks has never had a claim filed against him. He's one of your leading docs here in the state of Pennsylvania. He's one of your best assets. He's never been to the courthouse. And yet, because the system is broken, he couldn't afford to be in Pennsylvania. Fortunately, he got some insurance through a hospital; he couldn't do it on his own. You've got a problem here in this state. (Applause.)"

Twenty percent of hospitals nationwide have had to cut down on certain services -- on delivering babies, or neurosurgery, or cardiovascular surgery, or orthopedic surgery. That's a fact. So the problem is not only for Pennsylvania, it's a problem for our country. And there's another cost driver. And if you're worried about getting sued all the time, then there is the natural tendency to practice what they call defensive medicine. In other words, you order tests that someone may not need, to protect yourself in a court of law. And that's costly, and that's one of the main reasons why costs are going up. These lawsuits have got a lot of effects on our country, and we've just got to understand that. The direct cost of malpractice insurance and the indirect cost from defensive medicine raise the federal government's health care cost by at least $28 billion a year."

If you're looking for solutions in Pennsylvania, look at states which have done a good job of helping the patient out. California is one example. More than 25 years ago, they passed a law that caps damages from malpractice suits. And the law has worked. Let me tell you a startling statistic. Reports from Philadelphia say that juries there have awarded more in malpractice damages than the entire state of California did over the last three years. That says two things. California's law is what people in your statehouse ought to look at, and you've got a problem in Pennsylvania. (Applause.)Yet, for the sake of affordable and accessible health care in America, we must have a limit on what they call non-economic damages. (Applause.) And I propose a cap of $250,000. (Applause.)"

We need reform. You need reform in Pennsylvania, and we need reform all across America, and we need a law coming out of the United States Congress. (Applause.) It's a law that recognizes the centerpiece of good health care is to worry about your patient, the American people. It's a law that will recognize that an affordable and accessible health care system can best be had if we limit the caps -- put caps on non-economic and punitive damages. That's what I understand. (Applause.)"

The President never mentioned the insurance industry's role in increasing premium costs, or the concept of fairness with regard to adequately assessing a claim according to the needs of the plaintiff. The U.S. House of Representatives with the support of President George W. Bush passed the bipartisan HEALTH Act (H.R. 4600), which it attributed in large part to the efforts of the AMA, who has been "aggressively fighting for tort reform measures at both the state and federal levels."

By a vote of 217 to 203, the House of Representatives said 'no' to the liability lottery and 'yes' to common sense liability reforms," said AMA President-elect

Donald J. Palmisano, MD. "The HEALTH Act is based on a successful California law known as MICRA, which has proven fair to patients and effective at stabilizing the medical liability system in California. MICRA has saved Californians more than $1 billion dollars a year in liability premiums. The AMA, the House of Representatives and President Bush all side with patients on the need for medical liability reform," said Dr. Palmisano. "Now the AMA will redouble its efforts to gain Senate passage of reforms to ensure access to patient care and an end to the liability lottery."

On February 2, 2003, the Democratic National Committee sent this snippet to its constituents in a newsletter. It may be noted that major issues often boil down to Partisan views in America, as the President is Republican and the Democrats are often the devil's advocates for Republican initiatives. The newsletter was released a few days after the President's State of the Union address, which was televised to the nation and focused on the major issues in America today and the President's role in solving them.

On health care. American health care is in crisis. Millions of Americans, including children, have no insurance. Seniors are choosing between buying food and filling their prescriptions. And President Bush has made it clear: his health care agenda was written by and for the big insurance and drug companies and HMOs."

Based on a study supported in part by the U.S. Agency for Healthcare Research and Quality and the Robert Wood Johnson Foundation, researchers from the Harvard School of Public Health have recommended an alternative model of no-fault compensation similar in disposition to the Swedish system. They claim that such as system, by removing the blame game, would encourage hospitals to correct mistakes rather than hiding them, and would cost no more than the current medical malpractice system. The rationale for the use of a no-fault scheme is described in the Professional Indemnity Review's Interim Report as follows:

No-fault compensation schemes and strict liability are based strongly in the distributive justice model. Benefits are usually paid to a larger group of people, sometimes as periodic payments, sometimes as single lumps, sometimes using damages law to assess the amount, sometimes using different statutory formulations. There is always an attempt to reduce the transaction costs to a more reasonable level than occurs in traditional tort situations. No-fault schemes are usually funded on a compulsory basis from participants in the activity. This may be the health care professionals or institutions, though it can also be funded on a first party basis by those who receive the services, or from general tax revenue."29

Our view is certainly optimistic," the Harvard proponents write, "but it is a social experiment worth undertaking if we are to decrease significantly the number of injuries caused by medical errors." Two limited no-fault schemes currently operate in the United States; Virginia's Birth-Related Neurological Injury Compensation Scheme established in 1987, (Birth-Related Neurological Injury Compensation Act 1987 (Va.), Va. Code [[section]][[section]] 38.2- 5000 et seq. (1990 Repl. Vol.).) and Florida's Birth-Related Neurological Injury Compensation Plan established two years later. (Birth-Related Neurological Injury Compensation Act 1989 (Fla.), Fla. Stat. Ann. [[section]] 766-302(2).) Both schemes are described by Wadlington and Wood in a recent paper, who conclude that they have had some success in achieving their objectives in the short-term: In essence, the schemes provide the impetus for physicians and hospitas to remain in the business of delivering babies while offering reasonable compensation for newborns with severe neurological injuries, both at an economic cost that can be tolerated by sociey. If they continually accomplish these initiatives they will be declared successes and will be serious candidates for replication in other areas where tort law now seems to be breaking down.30

THE UNITED STATES SITUATION, IN SUMMARY

David Bernstein, an assistant professor at the George Mason University School of Law, had this to say about the American tort system:

By all reasonable measures, the American tort system is a disaster. It resembles a wealth-redistribution lottery more than an efficient system designed to compensate those injured by the wrongful actions of others."

It seems the AMA and President Bush may be aiming the gun at the wrong target, missing the bull's eye, the insurers and their corporate sponsors altogether once again. In moves that are more dead-on, some state officials have moved instead to freeze rates. In July, New York State's insurance department rejected a requested 8% rate increase for that state's largest medical malpractice insurer. In August of 2002, Pennsylvania's Attorney General urged the state insurance commissioner to suspend the up to 48% of the medical malpractice insurance rate increase for Pennsylvania's joint underwriting authority.

According to Dr. Richard G. Roberts, Chairman of the American Academy of Family Physicians, some of the "truths" of the civil justice system in America can be summarized as follows:

About one in 50 hospitalized patients is injured due to negligence and yet only one in 10 of those files a lawsuit and, among those filing suits, only one in 20 receives money

There is more malpractice committed than is recognized, litigated or compensated plaintiffs in most cases are not 'gold-digging;' and the vast majority [of plaintiffs] have medical outcomes none of us would want for ourselves or our loved ones."31

NEW ZEALAND CASE STUDIES

Medical malpractice insurance in New Zealand has been administered by the government-owned Accident Compensation Corporation since 1974. The funding for claims under this scheme is borne by the government and the country's paid workers and not medical practitioners. The "scheme" provides coverage for work and non-work related injuries, motor vehicle injuries and "medical misadventure" for all New Zealanders and visitors. A "medical misadventure" is defined as a personal injury resulting from treatment by a registered health professional, or an organization such as a hospital or medical laboratory. In 1992, the coverage was extended from "medical error" to "medical mishap." (Medical error is defined as the failure of the health professional to observe the standard of care and skill reasonably expected under the circumstances. Medical mishap is defined as: the patient received the right treatment and it was properly administered, but the patient had a complication that was both rare and severe as a result of the treatment, not the patient's medical condition.) For a claim to be accepted, it must meet the definition of a medical mishap or a medical error.

The structure of the ACC is broken out as follows:

Account Name

Funding Source

Funding Target

Employer's Account

Employers

Work-related personal injuries (injuries occurring prior to 1999 are paid from residual claims account.

Earner's Account

Workforce, through PAYE

Non-work injuries suffered by people in paid employment (except motor vehicle accidents)

Self-Employed Work Account

Self-employed and private domestic workers

Work-related injuries to Self-employed and private domestic workers

Non-Earner's Account

Direct payment from government

Injuries to people who are not in the workforce, such as students, beneficiaries, retired people and children.

Motor Vehicle Account tariff on the price of petrol and from a portion of the motor vehicle licensing fee

Injuries involving motor accidents on public roads

Medical Misadventure Account

Earners and non-earner's accounts

Injuries that result from error by medical practitioners of from rare and severe outcomes of medical or surgical procedures

Residual Claims Account

Employers and self-employed persons

Work injuries occurring before July 1, 1999 or non-work injury suffered by earners prior to July 1, 1992.

The "scheme" is based on a no-fault system of compensation and replaces the right to sue for damages. The ceiling for damages caused by "medical misadventure" are determined by statute. Exceptions like claims for exemplary or punitive damages (which are not considered part of statutory damages) may in certain circumstances reach the courts, but is unlikely to reap damages unless there is evidence of conscious wrong-doing, even in the face of significant negligence. There is a small sector of professional indemnity insurance business in NZ, which pertains to potential damages that may be awarded by the courts outside of the auspices of the ACC.

Issues under consideration in the NZ scheme are threefold:

Whether the statutes for levels of compensation are currently fair and reasonable.

Whether the criterion for medical mishap is too stringent as to rule out legitimate adverse events.

Whether medical practitioners should directly fund the cost of medical misadventure claims.

Payments for personal injuries are clearly defined under the present system and fall under the following categories: 1. cost of treatment for the injury, 2. rehabilitation costs, 3. loss of earnings, and 4. payments for permanent impairment. Loss of earnings is paid on a weekly basis beginning in the second week, at 80% of gross subject to a specified maximum. Payments for permanent impairment depend on the date of occurrence. If the impairment occurred prior to April 1st, 2002, an "independence allowance" applies. For payments after the threshold date, a lump sum payment is allowed. Criteria for permanent impairment is defined as having a "whole person" impairment of 10% or more. A lump sum payment can range from NZ$2,500 to NZ$100,000 (at 80% or more impairment). The amounts are annually indexed for inflation.

Through 1997, premiums were funded on a pay-as-you-go basis. Since 1998, the basis was changed to fully funded. The cost of claims has increased over the past three years based on the future estimates in relation to claims notified and accepted, as well as claims incurred. A 5% handling fee is included in the estimate. The rise in costs is largely attributed to the valuation process during the past two years. The average liability per medical misadventure claim for the past three years is as follows:

Period

Avg. Liability (NZ$000)

Increase

YE June 1999

YE June 2000

YE June 2001

As summarized by Lewis N. Klar of the University of Alberta, the New Zealand system implicitly rests on the following ideological premises: "First, the community has the responsibility to restore to full productivity all members of society who have become disabled. Second, everyone in society should have equal access to compensation benefits." Benefits coverage is broad, and includes medical care and transport to it, funeral expenses, awards for permanent loss or impairment, loss of earnings and limited awards for disfigurement, pain and suffering...The scheme as a whole costs about 1.4 per cent of GNP. Its principles have continued to enjoy wide support and have been endorsed by two recent official reviews... although some concern has been expressed about its effect on medical accountability. (Dingwall et al., op. cit., pp. 61-62)

In the September 2001 New Zealand Medical Journal, an article entitled "A Compensation Perspective on Error Prevention: Is the ACC Medical Misadventure Scheme compensating the right sort of injury?" addresses further reform of New Zealand's compensation criteria. The suggestion is to expand the "medical error" test beyond individual errors to include workable definitions of system failures, thereby addressing some of the underlying causes of errors and moving more towards a preventative system of quality care for patients.

THE SWEDISH SCHEME

Unlike New Zealand, the Swedish system is limited to injuries sustained in the medical care environment. The system has been in place since January 1st, 1975, in response to a consensus made by politicians, medical professionals and insurers in order to indemnify so-called 'therapeutic injuries'. The scheme was introduced not to mitigate cost, but because so few injured patients received compensation through the tort system. Swedish patient insurance scheme compensates those people who have been injured by medical intervention, other than for cosmetic purposes, or by treatments which were incorrectly prescribed or performed. Patients must prove the cause of their injuries, but need not show that it was the fault of any particular person. The Swedish system is primarily based on employers' no-fault compensation principles, yet claimants retain the right to claim in the courts.

The National Insurance Act is the vehicle under which all Swedish citizens and foreign nationals who reside in the country are covered for medical care, dental care and prescriptions. There is a patient fee associated with receiving medical care and a discounted rate applied to purchasing prescriptions. A state subsidy supports the cost of dental care.

Insurance is compulsory for health care providers. Sweden's medical and health care system is decentralized. Government is concerned with the legal framework, including defining and maintaining quality standards and equitable distribution. County Councils act as responsible parties for purposes of liability in their jurisdictions, overseeing some 90 hospitals and over 900 health centers. About 90% of all physicians are employed in the County Council sector. The remaining 10% can be found in the following categories: university teachers, private practitioners, occupational health workers and pharmaceutical specialists. Unlike many other European countries, Sweden's doctors operating in the County Council sector are salaried, and are all qualified as specialists in Family Medicine.

In sharp contrast to the American medical system, which has doctors working in some cases in excess of 48-hour shifts, the average workweek in Sweden is based on forty hours. When nights and weekends are required, compensation is offered either in additional money or free time, or a combination of the two. Almost all of the doctors in the County Council are also members of the Swedish Medical Association, a quasi-Union/Regulatory agency that represents doctors in salary negotiations and benefits, as well as providing education and quality assurance services.

The number of physicians is Sweden has tripled since 1970, with one doctor for every 330 residents. Two thirds are specialists (there are 62 recognized specialties in Sweden, which are each clearly defined not just in the nature of the practice but in the training objectives associated with reaching this status). There was a surplus of physicians in the mid-nineties. However, in late 1998 certain specialties were losing professionals to demand in Denmark and Norway. It is projected that a shortage of physicians may occur between the years 2005-20015, as many of the present workforce retires.

The Swedish scheme does not compensate for general misfortune, sickness nor disability benefit, as these are covered by special legislation. Premiums correspond to actual indemnity and administrative costs, because awards reflect civil awards. Theoretically, the Swedish system is based on the principle of ' avoidability'. The criteria for claims compensation is straightforward: (1) an injury resulted from treatment, (2) the treatment in question was medically justified, and (3) the outcome was unavoidable. Satisfying the first condition alone will ensure compensation, provided the patient had spent at least 10 days in the hospital or endured more than 30 sick days. This threshold is intended to eliminate minor claims. The employer is responsible for replacing income for the first 14 days after an occurrence, at a rate of 80% of the patient's normal income up to a certain social security-based ceiling. (274-500 SEK). The Social Insurance Authority assumes responsibility on the 15th day, and provides rehabilitative services as needed.

The total population of Sweden is approximately nine million. Each year, there are about 9,500 complaints of medical liability. It is estimated that 45%, or 4,000 of them are considered meritorious. The risk of error in Sweden is similar to the figures estimated in other locales: about 4%.32

After its first year in place, its total cost was less than fifty cents per citizen. The financing originated from general tax revenue. In essence the outcome visa-vie other systems can be generalized as a greater number of awards than that of systems without a no-fault scheme, but a lower average amount per award across the board.33 Given that the bulk of the need for medical liability is satisfied through the current scheme, most doctors are still encouraged to purchase private liability supplements and do, because the premiums for the supplemental coverage are relatively low.

However, the Swedish system is still not without some of the difficulties encountered anywhere in the world, regardless of the compensation system in place. An example is an injury in which it may be impossible to tell whether an infection was caused by the patients' own bacteria or by hospital bacteria, which even the strictest hygiene may be unable to prevent. For these reasons, a policy was needed to make the scheme more comprehensive and to compensate some unavoidable complications rising from medically indicated treatments, while not indemnifying every treatment or infection. A Schedule was therefore drawn up which set out those circumstances under which compensation is not to be paid. All other circumstances are covered, if they fit within the criteria already mentioned and the provisions of the scheme.

COMPARISON: WHICH SYSTEM IS BETTER?

FIRST: UNDERLYING DIFFERENCES

TALKING TORT: AMERICAN PECULIARITIES

The tort systems of Commonwealth nations other than New Zealand remain basically similar to the American system, with the following exceptions germane to America: (1) civil jury trials prevail in the United States, but have been largely abolished elsewhere; (2) In the United States the losing party is not responsible for the legal fees and costs of the winner, unlike other locales; and (3) American law has no limits on contingency fees. Combined, these differences lead to speculative litigation, which is the legitimate basis for overarching jury awards in this country. "One can define a speculative claim as one whose success depends not on the intrinsic legal merits of the claim, but on fortuity."

1. Civil Jury Trials in America

An underlying premise to the American system lies in the theory of economy. The ideology supposes that, if a claim has merit or economic value, the efficient market solution is to maintain a system that allows the claim to be sought. For instance, if an attorney repeatedly represents breast implant cases with a 20% success rate at an estimated value of $10 million each, then the economic value of each claim is in effect $2 million. The theory translates to probability in this manner: if there is a 20% success rate when the client puts forth a claim, then there is a 20% chance that the defendant actually caused harm. However, in practice, the factors are more likely associated with the chance of finding convincing experts, an ignorant or prejudiced jury, a compelling emotional argument, or the ability to coerce a settlement from a defendant who fears expensive, risky litigation and potential bad publicity. "Efficiency considerations that make sense in the context of a free market do not make any sense when applied to nonmarket situations such as litigation."34

2. The Losing Party IS Responsible

In 1995 the Law Society of England and Wales (which is analogous to the American Bar Association) developed Accident Line Protect, an insurance plan designed to protect personal injury plaintiffs from liability for their opponents' big legal bills. For a fee of £85 (about $135) clients will be insured against having to pay their opponents' fees (as well as other expense such as court charges) even if their cases fail. Accident Line Protect limits coverage to exclude expensive litigation such as medical negligence cases, pharmaceutical, or tobacco-related actions.

Within one week of its inception, about 70% of the 1,300 eligible law firms had bought into the program. Kenneth Pritchard, secretary of the Law Society of Scotland, reports, "the Law Society of Scotland has been looking at this scheme, but we have serious reservations about its viability." The concern was expressed regarding whether the premiums were priced at an adequate rate to cover the cost of claims, a mistake that has been made by American insurers in the past, causing financial collapse.

A new private firm entered the fray with the program Litigation Protection, which seemed to address these concerns by structuring its program differently. The premiums start higher (beginning with £175 to cover up to £10,000 in nonmedical negligence personal injury cases and £4,250 for up to £50,000 coverage in a medical negligence case. The difference is Litigation Protection insurance will be available for all classes of cases. Since the cases it includes are subject to more extreme awards, there is no assurance here that premiums will again be a sufficient measure to cover claims.

3. Contingency Fees Propell Progress

The English system with its ban on contingency fees is unlikely to reflect the speculative nature of the American system, even with the new insurers entering the fray, as the incentive for speculative practice is removed. In the United States, the contingency fee is the standard. Attorneys generally get from one-third to one-half of the damages, whether at settlement or at trial, a sum far greater than any direct fee system would allow. An experienced attorney is often able to assess to some degree the likelihood of success based on the merits of the case early on, during initial consultations with the plaintiff. Because of this fundamental difference, a larger number of American cases go to trial rather than settling than in the English system, regardless of the fact that the ratio of adverse effect to claims overall is still low across the board.

However, with the contingency system, the attorney's motives may differ from the client's best interest. The tendency toward a fast and substantial settlement may be in the attorney's best interest, a significant wart in the system of American jurisprudence. As Walter Olson of the Manhattan Institute has pointed out, plaintiffs' lawyers can make the same boast as the Irish Republican Army did when it attempted to assassinate Margaret Thatcher: we only need to be lucky once; the defense must be lucky every time.

AMERICANS CONSIDER NO-FAULT

According to the ACP Observer, "despite what doctors may think, studies have found that the vast majority of injured patients never receive compensation for their injuries. Most of the state-level tort reforms have actually decreased the claims rates, which means some patients who may have sued in the past do not now. A no-fault type of medical malpractice system would cost a little more than the current system, but it would more frequently compensate patients injured by the health care system. In addition to achieving some equity in the distributive nature of the claims process, the notion is that the amount of awards made would be more consistent and therefore, fairer across the board.

The only no-fault medical liability systems currently operating in the U.S. were created in the late eighties in the states of Florida and Virginia, in reaction to a perceived liability crisis. The systems are limited to cases of newborns with severe birth related neurological impairments. Doctors who practice in this specialty pay additional premiums. These now provide the basis for some legitimate reflection and study on the subject:

This grant from Robert Wood Johnson Foundation, a philanthropy devoted to United States healthcare, funded an evaluation of the Florida and Virginia no-fault compensation programs. The grantee organization subcontracted with Princeton, NJ-based Mathematica Policy Research (MPR), a private consulting and survey firm. Firstly, the two programs are unique in their design. The Virginia statute -- the Birth-Related Injury Compensation Act -- covered birth injuries "involving permanently disabling spinal cord or brain damage caused by oxygen deprivation or mechanical injury during labor, delivery, or resuscitation" Claims were presented to a Workers' Compensation Commission. Awards were based on monetary loss plus reasonable attorney fees. Although similar, the Florida Birth-Related Neurological Injury Compensation Act differed in several respects, including offering compensation for non-economic-loss up to $100,000.

The Virginia Medical Society had predicted the state's program would receive 40 claims a year, but by February 1995, only 15 claims had been filed. Of those, nine were paid; two were denied; and four were pending. The Florida program had a higher caseload; as of that same date it had received 128 claims for compensation (43 were accepted for payment; 57 were ruled non-compensatory; 5 were under appeal; 10 were denied but awaiting a hearing; and 13 were undergoing evaluation).

The key findings of the study were summarized as follows:

The Florida and Virginia no-fault programs achieved their primary objective, which was to maintain the availability of affordable obstetrical liability coverage for physicians. Project staff reported in the Fall 1998 issue of the University of Cincinnati Law Review that obstetrical liability premiums in the two states "declined much more rapidly after no-fault than in the rest of the nation. This success was achieved by taking many of the most expensive obstetrical cases out of tort litigation."

Administration of no-fault is less expensive than under the tort system, and the speed of resolving no-fault cases, once filed, is very high.

No-fault claimants generally expressed satisfaction with the programs, with the exception of those who did not receive compensation. Physicians were generally satisfied, but expressed dissatisfaction with the cost of their no-fault insurance premiums.

Only a small portion of potential claimants seeks compensation under either no-fault or tort. Project staff reported in Obstetrics & Gynecology that in Florida only 13 no-fault claims were paid per year compared to 497 live births estimated to have resulted in cerebral palsy in 1990.

The Florida and Virginia programs are too limited in scope to achieve many of the goals that proponents ascribe to the no-fault system -- such as broader access to compensation and increased prevention of medical injuries. Those broader goals would require a larger program, which would necessitate larger funding. "The existing programs do not support the expectation that broader no-fault would be less expensive to operate than a liability system alone," the project team reported to RWJF.

Although total combined payments to patients and all lawyers did not decrease, a much larger portion went to patients. The project team reported to RWJF that less than 3% of total payments went to lawyers under no-fault versus 39% under tort. Patient compensation minus attorney fees increased either 4% or 44%, depending on the projection method used.

Patients under this system were granted awards on average a year faster than those who underwent trial. Although the awards themselves were no different than in other systems, the costs of process were less and patients got a larger share of the compensation.35 David M. Studdert, LLD, MPH, of Harvard's School of Public Health, projected that if a Swedish style system of no-fault were applied, the result would be an increase in the number of injured patients receiving payments - 1,000 in Colorado as opposed to approximately 300 today, and 900 in Utah compared to 200 today, an increase in overall distribution of approximately 300%, with little or no increase in cost.

Debate reigns, however, over the cost/benefit analysis of a no-fault system. Frank A. Sloan, PhD, a professor of health policy and management at Duke University said "Such programs "pay out in cases where there has been fault on the part of the doctors, with no feedback to the doctors," implying that the systems provide no feedback mechanism for the improvement and ongoing prevention of error. Frances H. Miller, JD, a professor at Boston University School of Law, showed that doctors are being less frequently "disciplined" ex post facto by licensing boards and the courts. He points out that a global focus on "total quality improvement" and practice guidelines are administrative mechanisms that do not achieve accountability at the individual level.36 It is likely that the underlying regulatory system of quality standards and enforcement will in large part effect the successful outcome of a no-fault system with regard to improvements in practices.

BRITAIN CONSIDERS NO-FAULT

Dissatisfaction with civil legal aid in the United Kingdom, particularly its burgeoning cost, led to legislation passed in 1995, which permits a limited form of contingent fees in personal injury actions. Attorneys may now enter into a fee agreement with a plaintiff, which provides no fee if the claim is unsuccessful, but allows the attorney to collect up to double his normal fee if the plaintiff recovers damages. U.K. lawyers have taken to calling these fees "conditional fees," to distinguish them from American-style contingency fees based on the damages awarded, which remain banned.

In the UK, Alan Milburn the Health Secretary has hinted that he favours a no-fault compensation system. During Parliamentary session he stated: "All this is not just my judgment. The British Medical Association has said:"

For many years the medical profession have been concerned about the social injustices of the present tort-based system and established a working party to look into instituting a no fault compensation system.

During Parliamentary session the debate over no-fault reform revealed a plethora of proposed pros and cons. The rationale for a no-fault system lies in the belief that the patient will experience less time and expense when submitting a case, and the compensation will be based on the need of the injured party. (8 Apr 1998: Column 455) Addressing the oft-heard contention that no-fault reduces accountability, Mr. Milburn countered: "It is not our intention that such a scheme should protect professional staff if errors were made." In England today there exists a separate medical disciplinary procedure that serves to ensure professional standards. It is expected that such a procedure will continue its mission. Under a no-fault system, discipline and compensation do not need to be linked, as long as accountability and standards of care remain present.

The cost of administering a no-fault scheme has come under question. In 1988, the King's Fund and the centre for socio-legal studies, Oxford, estimated that, in addition to continuing costs of the Department of Social Security, the present litigation scheme, based on 10 claims per 100,000 of the population per year, would cost £75 million per year, whereas a no-fault scheme may cost £120 million per year. The offsetting benefit was recognized as the decrease in delays and assistance afforded to plaintiffs by instituting this process. The basis for these estimates has not been clearly established, however, and opinion varies widely on the cost of no-fault, particularly in consideration of weighing the tangible benefits to society.

In 1978, the royal commission on civil liability and compensation for personal injury, looked into a scheme for no-fault compensation in the United Kingdom, resulting in a document entitled "The Pearson Report," which examined no-fault systems in place in New Zealand and Sweden. Although it did not recommend replication of these schemes, it did advise that they be monitored. A direct comparison of the systems would be difficult due to the differences between jurisdictions. However, the success of the programs, particularly in Sweden, cannot be ignored.

It has been proven that a higher proportion of compensation goes to the victim under a no-fault scheme. In New Zealand, 93p of every £1 spent goes to the victims, and only 7p goes to administration. In Britain, the National Consumer Council claims that for every £1 awarded as compensation, 85p is taken up in costs. Opponents of no-fault argue that, within delegated limits, NHS bodies may already award compensation on an ex-gratis basis up to a maximum of £50,000 where no fault has been established.

In 1990, the present Secretary of State for Social Security and Minister for Women, and in 1991 Ms Rosie Barnes, the then Social Democratic party Member for Greenwich, brought Bills before the House to introduce no-fault compensation schemes, but they died without Government support. The principal reason cited was that the reforms failed to provide an adequate definition of a "medical accident," and therefore to define the criteria for compensation. Yet there was no distinct criticism or reasoning that indicated the idea should not be further studied. The primary hesitancy to implement a no-fault scheme stems from the fact that the system would be funded from NHS resources, and would inevitably result in reducing the money available for direct patient care. It also seems possible that the cost of meeting injury claims would be shifted from those who were negligent to the community as a whole.

The argument has been made that a no-fault system could diminish clinical accountability over time, with recurring instances of overlooked error. However, this issue has been addressed by the recommendations for strengthened independent regulatory and disciplinary measures. While the two functions would be considered separate entities, for successful implementation of maintaining standards in health care, the findings arising from no-fault judgments would need to be communicated to the administrative arm in charge of disciplinary measures.

The MacFarlane Trust in Scotland was established to compensate victims infected with HIV from contaminated blood. The trust was established in 1988 in response to requests from the Hemophelia Society and prompted by a decision by the government in the United Kingdom to establish a hardship fund for those afflicted. In the Mac Farlane scenario, the characteristics that mirrored a no-fault solution were twofold: 1. The claimants who received payments from the trust waived their right to litigate, and 2. The government was excluded from liability.37 The scheme made payments ranging from £21,500 to £60,500. To qualify, the claimant had to have tested positive for HIV and had to have received the tainted blood before December 13th, 1990. To date the highest payout amount estimated from the fund is an aggregate £94m. The arguments in favor of the no-fault approach in the McFarland case can be described as follows:

Civil litigation focuses on punishing the employer rather than the individual.

The burden of proof is extensive for the plaintiff.

The role of expert advice is heightened, and adds to the complexity and the time involved in resolving cases.

Medical negligence is uniquely difficult to prove.

Damages can be high, including compensation for future care. No-fault can offer periodic payment solutions.

CONCLUSION

In both New Zealand and Sweden, the cost of the no-fault system is community-based rather than provider-based. This structural difference in administration from other systems poses an inherent "apples and oranges" approach to analysis. Both systems place first priority on determining the cause of injury associated with a claim, and substantiating on some level whether medical management was at root. In New Zealand, a claimant must establish personal injury by accident or "medical mishap." Immediate compensation is provided in cases where it is determined that substandard or inappropriate treatment led to the injury. Severity of injury is based on time spent in the hospital or with significant disability. However, the third step in Sweden is to determine whether the injury was avoidable with optimal care, while New Zealand focuses on whether the injury was rare.

Questions of fairness, equity and funding prevail with New Zealand's system: A consensus for success has not yet been reached. The Swedish system, however, is largely considered a success for several reasons:

The system limits its focus to injuries sustained in the medical care environment.

The intended purpose was to increase access to compensation for claimants.

In this manner, claimants retain the right to seek recompense in the courts, should they find the need to do so.

The working environment for doctors is favorable. Pressure towards focusing on earnings is removed, as physicians are salaried. Hours are more in line with other lines of business, reducing errors caused by exhaustion in systems that have 48-hour shifts and greater for medical personnel, an oxymoron in that adequate health care requires adequate sleep.

The number of doctors per capita is high, with one doctor for every 330 residents.

Claims outside of the jurisdiction of the no-fault scheme are provided for by separate legislation.

By limiting its focus, the costs of the no-fault scheme have remained low.

Lord Woolf suggested an innovative back-door approach, by reversing the burden of proof in personal injury cases, to mirror the workers compensation system in Spain and France. In those systems, the injury would be compensated unless the party paying the claim could demonstrate that they were not at fault.

An obvious answer is not an all-or nothing approach, but rather an examination of each characteristic of the systems of New Zealand and Sweden, and an evaluation of the likelihood for their success under the current U.K. framework of government. It would also be prudent to evaluate the willingness of the government and the populous to make certain changes to the current structure in order to make the reforms work, such as decentralizing the NHS or placing a burden on the system of taxation to fund certain initiatives.

A complete evaluation of cost considerations must be considered in light of the number and nature of claims experienced statistically, and the median award for damages. Is the median award considered, for instance the appropriate award? Is there a standard, perhaps found in the Swedish system, for measuring such benchmarks? Under a no-fault system, will the number of claimants be expected to increase? How will the awards fare in relation to the increase in claimants, and what will be the net impact financially? Should claimants retain or waive the right to seek compensation in the courts under the new system? What will be the limits of coverage, the "definition" of medical error to be applied to a no-fault system? How broad will the system of coverage be? Who will handle matters that fall outside of this definition? How will determinations of error be reported back to the medical community for quality improvement? Who will be responsible for the regulation and enforcement of safe medical practices? Once these questions can be answered within the framework of the current governmental structure in a way that benefits both plaintiffs and defendants, a solution will have been found for sound reform.

Works Cited Access to Justice Final Report. July 1996. Section 1. Paragraph 2. Bolam v Friern Hospital Management Committee. [1957] 1 WLR 587. Bolitho v City and Hackney Health Authority. [1997] 1 WLR 1151. Bovbjerg, Randall R. JD, of The Urban Institute in Washington, D.C. http://www.acponline.org/journals/news/nov97/malpract.htm. Brazier M, Miola J. Bye-bye Bolam: a medical litigation revolution? [2000] 8 Med LR 85-114. Bristol Inquiry Report. http://www.bristol-inquiry.org.uk,2001. Corrigan, Donaldson, Ed. To Err is Human; Building a Safer Health System, Kohn.; Institute of Medicine, National Academy Press, Washington, DC. Council of Civil Service Unions v Minister for the Civil Service (GCHQ case) First Do No Harm; A Consumer Response to the Medical Lobby's Campaign to Limit The Legal Rights of Injured Patients, NYPIRG et at., September 2002 Fritsch, Jane. "Sometimes, Lobbyists Strive to Keep Public In the Dark," New York Times, March 19, 1996. Grace, Elayne and Queau, Jean-Marc. What's Happening in Medical Malpractice Around the Globe. The Institute of Actuaries of Australia Ixth Accident Compensation Seminar. 27-30 October, 2002. Human Rights Act. Section 4. 1998. Hunter, Robert J., Director of Insurance, Consumer Federation of America, November 14, 2001. Jones M. Informed consent and other fairy stories. [1999] 7 Med LR 103. Knowles D. Clinical risk management. Br J. Hosp Med 1995; 53: 291-292. Leape LL, Brennan TA, Laird N, et al. The nature of adverse events in hospitalized patients: results of the Harvard Medical Practice Study II. N Engl J. Med 1991; 324: 377-384 Lindsey Tanner, "Study finds over 40 drug errors daily at hospitals," Associated Press, September 9, 2002. New England Journal of Medicine, Volume 294:1268-1270 Ornstein, Charles. "Verdict Not In on Malpractice Caps," Los Angeles Times, August 3, 2002. http://consumerwatchdog.org/healthcare/pr/pr002549.php3 Oster, Christopher and Zimmerman, Rachel. "Insurers' Missteps Helped Provoke Malpractice 'Crisis,'" WallStreet Journal, June 24, 2002. Professional Indemnity Review. Interim Report, op. cit., p. 52, para. 3.77. Professor J. McHale, Faculty of Law, University of Leicester, Leicester LE1 7RD, UK Report of the Inquiry into the Royal Liverpool Children's Hospital (Alder Hey). http://www.rclinquiry.org.uk,2001. Robertson v Nottingham HA. [1997] 8 Med LR 1 CA. The Cato Review of Business & Government, Procedural Tort Reform, Lessons from Other Nations, David E. Bernstein The Expert Group on Other and Financial Support, Preliminary Report September 2002, Commissioned by the Scottish Executive, St. Andrew's House, Regend Road, Edinburgh The Lord Chancellor's Department Civil Justice Reform Evaluation, Further Findings. A continuing evaluation of the Civil Justice Reforms, August 2002 The Medical Malpractice Insurance Crisis: Opportunity for State Action. National Academy of State Health Policy. July 2002 The new NHS: modern dependable. CM 3807. A first class service: quality in the new NHS. 1998/113 HSC. London: Department of Health, 1997-8. The Prospect for Error Prevention" in the July 11, 2001 issue of the Journal of the American Medical Association (http://jama.ama-assn.org/) The Scottish Parliament Information Centre. The MacFarlane Trust & No-Fault Compensation. 3 September 2001. The Swedish Patient Insurance -a pragmatic solution Carl Espersson Legal Advisor 2000 - Patientforsakringsforeningen W. Wadlington and W.J. Wood III, 'Two "no-fault" compensation schemes for birth defective infants in the United States', Professional Negligence, vol. 7, no. 1, 1991, pp. 40, 43. See also D.G. Duff, 'Compensation for neurologically impaired infants: medical no-fault in Virginia', Harvard Journal on Legislation, vol. 27, 1990, p. 391-451. http://www.aafp.org/servlet/mntPress-press_id=1266&prhtml=afp_article_browse&actioncode=select. Wlazelek, Ann. "Doctors' ad campaign baseless; They're not fleeing Pa., but malpractice straits create 'hostile' climate".
Appendix A State Laws Chart 1: Liability Reforms

State

Damage Caps

Joint Liability Reform

Collateral Source Reform

Attorney Fees Limited

Periodic Payments Permitted

Alabama

No. Each defendant is jointly and severally liable.

Yes for awards of future damages in excess of $150,000.

Alaska

400,000 cap on noneconomic damages, or $8,000 multiplied by the injured party's life expectancy, whichever is greater. For severe medical impairment / disfigurement, limits are the greater of $1 million or life expectancy multiplied by $25,000.

Yes. Defendants are responsible only for their proportionate share of negligence.

Yes, after the fact-finder has rendered an award, and not including evidence of benefits received from a federal program that must subrogate, or death benefits paid under a life insurance policy.

Arizona

None - Constitution prohibits limiting recoverable damages

Yes. Defendants are responsible only for their proportionate share of negligence, except where co-defendants act in concert or a person is an agent or servant of a party.

Yes, discretionary. Defendant may submit evidence of collateral sources of payment and claimant may submit evidence of amount paid to secure benefits.

No, but at the request of any party the court shall review the reasonableness of each party's attorney's fees.

Yes. Any party may elect, and judge must order. Found unconstitutional Smith v. Myers, 191 Ariz. 11, 887 P.2d 541 (1994)

Arkansas

No. Each defendant is jointly and severally liable.

Yes, discretionary for future damages in excess of $100,000

California

250,000 cap on noneconomic damages

Yes. Defendants are proportionately liable for non-economic damages. However, they are jointly and severally liable for economic damages.

Yes. Defendant may introduce evidence of collateral sources of payment, claimant may introduce evidence of amount paid to secure benefits.

Yes, limited to 40% of the first $50,000; 33 1/3% of the next $50,000; 25% of the next $500,000; and 15% of any amount exceeding $600,000.

Yes. Any party may elect in cases where damages exceed $50,000.

State

Damage Caps

Joint Liability Reform

Collateral Source Reform

Attorney Fees Limited

Periodic Payments Permitted

Colorado

250,000 cap on noneconomic damages. Courts may increase the cap to $500,000 for future medical expenses and future earnings upon clear justification for doing so. Separate $250,000 limit on derivative noneconomic damages (nonpecuniary harm to person other than person suffering from direct injury or loss). Caps on damages are adjusted annually for inflation since 1998.

Yes. Defendants are responsible only for their proportionate share of negligence unless persons have consciously conspired and deliberately pursued a common plan or design to commit a tortious act.

Yes, benefits from collateral sources must be disclosed and used to reduce recoverable economic damages, minus any amount paid by the claimant to secure the benefit.

Yes. Mandatory for awards of future damages greater than $150,000. Discretionary for damage awards $150,000 or less.

Connecticut

Yes. Defendants are responsible only for their proportionate share of negligence. However, if within one year after the final judgment the court determines that all or part of a defendant's proportionate share is uncollectible, it shall reallocate the uncollectible noneconomic damages among other defendants according to their percentages of negligence. The court may not reallocate to any such defendant an amount greater than that defendant's percentage of negligence multiplied by such uncollectible amount.

Yes, benefits from collateral sources must be disclosed and used to reduce recoverable economic damages, minus any amount paid by the claimant to secure the benefit.

Yes, limited to 33 1/3% of the first $300,000; 25% of the next $300,000, 20% of the next $300,000, 15% of the next $300,000, and 10% of amounts exceeding $1.2 million.

For damages exceeding $200,000, the court shall give the parties 60 days to negotiate an agreement on method of payment, either in lump sum, periodic payments, or a combination thereof. If they cannot agree, the judge must order payment in a lump sum.

State

Damage Caps

Joint Liability Reform

Collateral Source Reform

Attorney Fees Limited

Periodic Payments Permitted

Delaware

No. Each defendant is jointly and severally liable.

Yes, the defendant may offer evidence of certain public collateral sources. These sources may not include life insurance or private collateral sources.

Yes, fees are limited to 35% of the first $100,000, 25% of the next $100,000, and 10% of any remaining award.

Yes, courts may order periodic payment.

D.C.

No. Each defendant is jointly and severally liable.

Yes, but courts are not required to award payments periodically.

Florida

None, if neither party requests arbitration or the defendant refuses to arbitrate. If the plaintiff refuses, economic and noneconomic damages are capped at $350,000. If the parties arbitrate, noneconomic damages are capped at $250,000.

Yes. Defendants are responsible only for their proportionate share of negligence. However, if any defendant's percentage of fault equals or exceeds the claimant, that defendant is liable for the claimant's economic damages.

Yes, and the court must reduce damages by the amounts paid to the claimant from collateral sources. If a right of subrogation exists, there is no reduction in damages. Benefits received by the government sources are not considered collateral benefits.

Yes. Levels vary based on how far the proceedings go before payment is received (settled, litigated, etc.)

Yes, for future economic awards exceeding $250,000, the court must order periodic payments at the request of any party unless the court determines that manifest injustice would result to any party.

Georgia

250,000 cap on punitive damages

Yes. Defendants are responsible only for their proportionate share of negligence. However, if the claimant is responsible to some degree, the trier of fact may apportion its award of damages among the persons who are liable, if their degree of fault is greater than that of the injured party. If the claimant is without fault, joint and several liability is imposed.

State

Damage Caps

Joint Liability Reform

Collateral Source Reform

Attorney Fees Limited

Periodic Payments Permitted

Hawaii

375,000 cap on noneconomic damages, with exceptions for certain types of damages, ie. mental anguish

Yes. Defendants are responsible only for their proportionate share of negligence, with the following exceptions: recovery of economic damages in actions involving injury or death, and noneconomic damages in such actions, where a tortfeasor's negligence is 25% or more; intentional torts; strict liability torts; and product liability torts.

In all tort actions, fees shall be limited to a reasonable amount as approved by the court.

Idaho

400,000 cap on noneconomic damages in all personal injury and wrongful death actions, adjusted annually since 1988 consistent with average state wage increase. Does not apply to willful or reckless conduct or felonious acts.

Yes. Defendants are responsible only for their proportionate share of negligence, except where co-defendants were acting in concert or a person is an agent or servant of a party, or any cause of action arising from the manufacturer of any medical devices or pharmaceutical products.

Yes, collateral sources may be submitted to the judge following the verdict. Judgments may be entered only for amounts that exceed recovery from collateral sources.

Yes, upon the request of either party, at the discretion of the court, and only in PI cases, where damages exceed $100,000. May not be ordered for intentional torts, gross negligence or an extreme deviation from reasonable standard of conduct.

Illinois

No. Each defendant is jointly and severally liable.

Yes, applicable only to medical malpractice claims. A judgment will be offset by 50% of lost wages and 100% of medical benefits received, minus any amount paid by the claimant to secure such benefits. The total judgment may not be reduced more than 50%. Does not apply to benefits that are subject to subrogation.

Yes. Fees are limited to 33 1/3% of the first $150,000; 25% of the next $850,000; and 20% of amounts over $1 million. Attorney may petition court for additional fees.

Party must elect periodic payment of damages at least 60 days prior to commencement of trial unless leave of court is obtained. Election is accepted if both parties agree or the other party does not make an objection to the election of periodic payments, or future damages will exceed $250,000.

State

Damage Caps

Joint Liability Reform

Collateral Source Reform

Attorney Fees Limited

Periodic Payments Permitted

Indiana

750,000 cap on total damages for any act of malpractice that occurs after 12/31/89 and before 7/1/99. $1.25 million total cap for any act of malpractice that occurs after 6/30/99. Health care providers are not liable for more than $250,000 for an occurrence of malpractice. Any amount awarded in excess of $250,000 will be paid through the Patient Compensation Fund.

No. Each defendant is jointly and severally liable.

Yes, trier of fact shall consider collateral sources of payment when determining award and court shall consider when reviewing awards that are allegedly excessive. Evidence of life insurance or other death benefits; benefits paid by claimant or family; or payments made by state or U.S. prior to trial shall not be considered collateral sources of payment.

Yes. Attorney may collect only 15% of damages awarded under Patient Compensation Fund.

Yes. Law permits, but does not require.

Iowa

Yes. Defendants are responsible only for their proportionate share of negligence where a defendant is found to bear less than 50% of the total fault. If a defendant is 50% or more liable, he is jointly and severally liable for economic damages only.

Yes, and damages must be reduced by the amount received from collateral sources.

No, but courts determine reasonableness of fee arrangements.

Yes. Any party may request periodic / structured payment. Court determines the reasonableness.

Kansas

250,000 cap on noneconomic damages

Yes. Defendants are responsible only for their proportionate share of negligence.

Not mandated

Kentucky

Jury may either apportion damages among defendants or hold defendants jointly and severally liable.

Not mandated

Louisiana

500,000 cap on total damages, excluding damages recoverable for future medical care

Yes. Defendants are responsible only for their proportionate share of negligence.

Yes, for amounts paid by the state from the Patient Compensation Fund.

State

Damage Caps

Joint Liability Reform

Collateral Source Reform

Attorney Fees Limited

Periodic Payments Permitted

Maine

400,000 cap on noneconomic damages in wrongful death actions

No. Each defendant is jointly and severally liable.

Yes. Evidence is admissible after a verdict has been rendered, and the judgment must be reduced by the amount received from collateral sources.

Yes. Fees are limited to 33 1/3% of the first $100,000; 25% of the next $100,000; and 20% of amounts over $200,000.

Yes. If damages exceed $250,000, either party may request periodic payment.

Maryland

500,000 cap on noneconomic damages on action for personal injury or wrongful death, increased by $15,000 annually beginning 10/1/95. In wrongful death actions with two or more claimants or beneficiaries, an award of noneconomic damages may be up to 150% of the limit.

No. Each defendant is jointly and severally liable.

Yes. Courts and arbitrators may order periodic payment.

Massachusetts

500,000 cap on noneconomic damages, with exceptions for proof of substantial disfigurement or permanent loss or impairment, or other special circumstances which warrant a finding that imposition of such limitation would deprive the plaintiff of just compensation for the injuries sustained.

No. Each defendant is jointly and severally liable.

Yes, benefits from collateral sources must be disclosed and used to reduce recoverable economic damages, minus any amount paid by the claimant to secure the benefit.

Yes. Fees are limited to 40% of the first $150,000; 33 1/3% of the next $150,000 and 30% of the next $200,000; and 25% of amounts exceeding $500,000. An attorney may not take an amount that would leave the claimant with less than the amount of unpaid past and future medical expenses, with exceptions.

State

Damage Caps

Joint Liability Reform

Collateral Source Reform

Attorney Fees Limited

Periodic Payments Permitted

Michigan

280,000 cap on noneconomic damages, adjusted annually for inflation, except in cases where the plaintiff is hemiplegic, paraplegic, or quadriplegic due to an injury to the brain or spinal cord, or where the plaintiff has permanently impaired cognitive capacity, or the plaintiff has had a permanent loss of or damage to a reproductive organ, then noneconomic damages shall not exceed $500,000.

No. Each defendant is jointly and severally liable.

Yes, benefits from collateral sources must be disclosed and used to reduce recoverable economic damages, minus any amount paid by the claimant to secure the benefit.

Rules limit contingency fees to one third of total compensation.

Yes. In some cases, damages exceeding $250,000 must be awarded periodically.

Minnesota

No. Each defendant is jointly and severally liable, except a defendant whose fault is 15% or less is jointly liable for no more than 4 times his percentage of fault.

Yes, within 10 days of the verdict and upon motion of a party. In such cases, the court must reduce the award by the amount received from collateral sources. Such reduction shall be offset by any amount paid by the plaintiff to secure the award.

Yes. Court must hold hearing in cases where future damages exceed $100,000 to allow the claimant to consider if damages should be paid periodically.

Mississippi

500,000 cap on noneconomic damages except in cases where the patient suffers disfigurement or if the judge determines punitive damages are warranted. Cap will be adjusted to $750,000 for causes of action filed after 7/1/2011 and to $1 million for causes of action filed after 7/1/2017.

Partially. For noneconomic damages, defendants are responsible only for their proportionate share of negligence. For economic damages, a joint tortfeasor who is less than 30% at fault is liable only for his proportionate share of damages, a joint tortfeasor who is more than 30% at fault can be held liable for up to 50% of the economic damages.

Yes, but they are not mandated.

State

Damage Caps

Joint Liability Reform

Collateral Source Reform

Attorney Fees Limited

Periodic Payments Permitted

Missouri

350,000 cap on noneconomic damges, adjusted annually for inflation

No. Each defendant is jointly and severally liable, but a defendant is jointly liable only with defendants whose percentage of fault is equal to or less than his own.

Yes. In cases where payment for future damages exceeds $100,000, court may order periodic payment upon request of either party. Court has upheld the constitutionality of this law.

Montana

250,000 cap on noneconomic damages

Any party whose negligence is 50% or less of the combined negligence of all persons is severally liable only. The remaining parties are jointly and severally liable for the total less the amount attributable to the claimant. A party may be jointly liable for all damages caused by the negligence of another if both acted in concert or if one party acted as an agent of the other.

Yes, in cases where damages exceed $50,000.

Total damages must be reduced by amount of prior payment from collateral sources that do not involve rights of subrogation.

Yes. Upon any party's request, the court must enter an order for periodic payment of future damages exceeding $50,000.

Nebraska

1.25 million in total damages. Health care providers who qualify under the Hospital-Medical Liability Act (i.e. carry minimum levels of liability insurance and pay surcharge into excess coverage fund) shall not be liable for more than $200,000 in total damages. Any excess damages shall be paid from the excess coverage fund.

Yes. Defendants are responsible only for their proportionate share of negligence, except where parties have acted in concert and caused harm as part of a common enterprise or plan.

Yes. The court shall determine in a separate hearing the amount of any credit against a claimant's damages based on any non-refundable insurance benefits reimbursed to the claimant. This information, however, is not admissible as evidence.

No, but upon motion of either party, the court must review and determine reason-ableness of fees.

State

Damage Caps

Joint Liability Reform

Collateral Source Reform

Attorney Fees Limited

Periodic Payments Permitted

Nevada

350,000 cap on noneconomic damages awarded to each plaintiff from each defendant except when:

1) the defendant's conduct constitutes gross malpractice, or 2) the court determines by clear and convincing evidence that a higher award is justified because of exceptional circumstances.

Yes. Defendants are responsible only for their proportionate share of negligence. Joint and several still applies to economic damages.

Yes. The judge must reduce the verdict by the amount of any collateral benefits, except where a right of subrogation exists.

Yes, if requested by the claimant.

New

Hampshire

No. Supreme Court has held abolition of the rule unconstitutional.

The court must approve fees for actions resulting in settlement/judgment of $200,000 or more. Specific limits for med mal cases have been ruled unconstitutional.

Yes. The court has authority to order periodic payment. Specific requirements for med mal cases have been ruled unconstitutional.

New Jersey

Punitive damages limited to the greater of $350,000 or five times compensatory damages.

Yes. Defendants are responsible only for their proportionate share of negligence if they are found to be less than 60% at fault.

Defendants found to be 60% at fault are subject to a modified rule.

Yes. Collateral source payments must be disclosed and deducted from claimant's damages

Fees may not exceed the following:

33 1/3% of the first $500,000; 30% of the next $500,000; 25% of the next $500,000; 20% of the next $500,000; and an amount the court deems reasonable for fees over $2 million.

State

Damage Caps

Joint Liability Reform

Collateral Source Reform

Attorney Fees Limited

Periodic Payments Permitted

New Mexico

600,000 cap on total damages, excluding punitive damages and past and future medical care. Health care providers personal liability shall not exceed $200,000, including payments for future medical expenses. Any award in excess of this amount shall be paid by the patient compensation fund.

Yes. Defendants are responsible only for their proportionate share of negligence except in cases where defendant intended to inflict injury, strict liability, vicarious liability or situations "having a sound basis in public policy."

Yes. Future medical expenses are paid as they are incurred by claimant.

New York

Yes. Defendants are responsible only for their proportionate share of negligence if they are found to be 50% or less liable.

Yes. Collateral sources of payment are admissible as evidence and must reduce the award by the amount recovered. Such reduction shall be offset by premiums paid by the claimant for the benefit for two years preceeding the action and projected future costs of maintaining benefits.

Yes. Fees are capped as follows: 30% of the first $250,000; 25% of the next $250,000; 20% of the next $500,000; 15% of the next $250,000; and 10% of fees of $1.25 million or more.

Yes. Future damages over $250,000 must be paid periodically.

North Carolina

No. Each defendant is jointly and severally liable.

North Dakota

500,000 cap on noneconomic damages. Economic damage awards in excess of $250,000 are subject to judicial review for reasonablenes.

Yes. Defendants are responsible only for their proportionate share of negligence except where defendants act in concert in committing, aiding and encouraging, or ratifying or adopting a tortious act.

Yes. Defendant may apply to the court for a reduction of economic damages based on collateral sources of payment.

Yes. In cases where future economic damages will be awarded for continuing institutional/custodial care lasting more than two years, a party may request periodic payments. Court has discretion to grant.

State

Damage Caps

Joint Liability Reform

Collateral Source Reform

Attorney Fees Limited

Periodic Payments Permitted

Ohio

Cap on noneconomic damages of the greater of $250,000 or three times economic damages up to a maximum of $350,000 per plaintiff or 500,000 if there are multiple plaintiffs. For catastrophic injuries the maximum may increase to $500,000 per plaintiff or $1 million for multiple plaintiffs.

Yes. Defendants are responsible for their proportionate share of negligence for noneconomic damages. For economic damages, defendants who are 50% or less at fault are responsible for their proportionate share of negligence, but defendants who are held more than 50% at fault are jointly and severally liable.

Yes. Defendants may introduce evidence of collateral sources of payments made to plaintiffs. The plaintiff may submit evidence of any amount the plaintiff has paid or contributed to secure the benefits.

No, but their fees are subject to approval by the probate court if their fees exceed the non-economic damages awarded.

Yes. Court may award periodic payment of damages for awards that exceed $50,000 if the plaintiff or defendant files a motion with the court.

Oklahoma

Punitive damages for cases where the defendant acted with reckless disregard are limited to the greater of $100,000 or the amount of actual damages awarded. No limit on punitive damages for cases where the defendant acted intentionally and with malice.

No. Each party is jointly and severally liable. However, case law has held that several liability exists where a claimant is held partially responsible for a tortious act.

Yes. In contingency fee arrangements, attorney may not contract to receive more than 50% of the recovery.

Oregon

None - Constitution prohibits caps on noneconomic damages

Yes. Defendants are responsible only for their proportionate share of negligence, but if within one year after the final judgment the court determines that all or part of a defendant's proportionate share is uncollectible, it shall reallocate the uncollectible noneconomic damages among other defendants according to their percentages of negligence.

Yes, but no deduction can be made for life insurance, benefits for which the claimant has paid, retirement/disability, social security, or insurance benefits for which the person injured or deceased paid premiums.

Partially. Attorney fees recovered from an award for punitive damages are limited to 20% of the 40% paid to the prevailing party. No limit on attorney fees for economic or noneconomic damages.

State

Damage Caps

Joint Liability Reform

Collateral Source Reform

Attorney Fees Limited

Periodic Payments Permitted

Pennsylvania

Constitution prohibits caps on non-economic damages. Punitive damages are capped at 2 times actual damages.

No. Each party is jointly and severally liable.

Yes. Awards are reduced by the amount paid to the claimant from other sources.

Yes for future economic damages that exceed $100,000, unless the claimant objects.

Rhode Island

No. Each party is jointly and severally liable.

Yes. Collateral payment sources may be introduced and claimant may introduce evidence of any payments made to secure such benefit. Award must be reduced by the difference between the collateral payments received and payments made by the plaintiff to secure such benefits.

Not mandated, but parties must consider if damages exceed $150,000.

South Carolina

No. Each party is jointly and severally liable.

South Dakota

500,000 cap on total general damages

No. Each party is jointly and severally liable, but parties who are allocated less than 50% of the total fault may only be jointly liable for more than 2xs the percentage of fault allocated to that party.

Yes, but no evidence of payments subject to subrogation and not purchased by the claimant or paid by the government.

Yes. If a party makes an effective election and both parties agree or a timely objection is not filed, or if a timely objection is filed but the claimant can prove future damages are in excess of $200,000.

Tennessee

Yes. Courts have held joint and several liability obsolete.

Yes. Damages awarded will be reduced by collateral sources of payment. Such reduction shall be offset by the amount paid by the claimant to secure the benefit.

Yes. Attorney compensation shall be awarded by the court, but may not exceed 33 1/3% of total damages.

State

Damage Caps

Joint Liability Reform

Collateral Source Reform

Attorney Fees Limited

Periodic Payments Permitted

Texas

500,000 cap on all damages for wrongful death, indexed for inflation since 1977. In 2002 the cap reached approximately $1.4 million.

Yes. Defendants are responsible only for their proportionate share of negligence, unless the percentage of responsibility attributed to the defendant is greater than 50%.

Utah

250,000 cap on noneconomic damages, indexed for inflation. For causes of action arising on or after 7/1/2001 but before 7/1/02 limit increased to $400,000. Limit adjusted annually for inflation thereafter.

Yes. Defendants are responsible only for their proportionate share of negligence.

Yes. Court must reduce damages by any collateral sources of payment received by the claimant, except for benefits from payors with subrogation rights. Reduction shall be offset by amount paid by claimant to secure such benefits.

Yes. Total compensation may not exceed 1/3 of total damages.

Yes. Any party may request periodic payments, and the court must order such payments if future damages exceed $100,000.

Vermont

No. Each party is jointly and severally liable.

Virginia

1.5 million cap on total damages for acts occurring on or after Aug. 1, 1999. This cap is increased by $50,000 annually until 2007. In 2007 and 2008, the cap is increased by $75,000.

No. Each party is jointly and severally liable.

Yes, but no requirement exists for such payments in PI cases.

Washington

Yes. Defendants are responsible only for their proportionate share of negligence if the claimant is found to be at fault, except where parties act in concert or where a person was acting as an agent or servant of the party, and where the party suffering bodily injury was not at fault.

Yes. Evidence may be presented, except that evidence of payments from insurance policies purchased with personal or family assets or by an employer on behalf of an employee may not be introduced.

Court shall determine the reasonableness of each party's attorneys' fees.

Yes. Any party may request periodic payments, and the court must order such payments if future economic damages exceed $100,000.

State

Damage Caps

Joint Liability Reform

Collateral Source Reform

Attorney Fees Limited

Periodic Payments Permitted

West Virginia million cap on noneconomic damages

Yes. Defendants are responsible only for their proportionate share of negligence if they bear less than 25% of the negligence of all defendants.

Wisconsin

350,000 cap on noneconomic damages for medical malpractice claims, adjusted annually for inflation. For wrongful death actions, $350,000 cap on noneconomic damages for adults, and $500,000 cap on noneconomic damages for minors.

Yes. Defendants are responsible only for their proportionate share of negligence if they are less than 51% at fault unless a defendant acted as part of a common scheme or plan.

Yes. The claimant may introduce evidence of payments received from collateral sources.

Yes, as follows: 33 1/3% of the first $1 million, or 25% if certain procedural timeframes are met; 20% of amounts exceeding $1 million. Court has discretion to increase fees.

Yes, if future medical expenses are expected to exceed $100,000.

Wyoming

None - Constitution prohibits caps

Yes. Defendants are responsible only for their proportionate share of negligence.

Yes, when recovery is $1 million or less as follows: 33 1/3% if claim is settled prior to or within 60 after filing; 40% if claim is settled more than 60 days after filing or upon judgment. If recovery is more than $1 million, 30% of recovery in excess of $1 million is considered reasonable.

Not mandated

Select State Laws II: Liability Reform

State

Arbitration

Expert Testimony & Qualifications

Affidavit/

Certificate of Merit

Excess Coverage

Fund

Statute of Limitations

Alabama

Arbitration is permitted if both parties agree in writing.

Expert testimony is mandatory, unless an understanding of the defendant's lack of due care or skill requires only common knowledge or experience. Experts must be certified in same specialty and must have practiced within the past year.

Medical malpractice: within two years of the act or omission giving rise to the cause of action, unless the cause of action was or could not have reasonably been discovered within the two years. In such cases, an action must commence within six months of its discovery, with a maximum limit of four years from the time of the act / omission giving rise to the action.

Minors: statute does not begin to run until age eight.

Alaska

Arbitration is permitted in contracts, so long as it is not a condition of providing services. The patient has thirty days to reconsider his decision to arbitrate.

If arbitration is not agreed to in a medical malpractice dispute, the court may appoint a 3-member expert panel to investigate the claim. Within 30 days, the panel must submit a written report to the court, which is admissible as expert testimony at trial.

Personal injury or death: within two years of the act or omission bringing cause.

Minor or incompetent by reason of mental illness or disability: statute is tolled for a maximum of two years after reaching the age of majority, or the disability is lifted.

Arizona

Arbitration is not mandated

Expert testimony is generally required to prove a breach in the standard of care.

Medical malpractice: within two years of acts or omissions that give rise to the cause of action.

Minors, mentally incompetent, and imprisoned: statute begins to run at the age of majority or when the disability is lifted.

Arkansas

Arbitration is not mandated

If the claimed negligence does not fall within the jury's common knowledge, expert testimony is required.

Medical malpractice: Within two years of the wrongful act.

Discovery of a foreign object: Within one year of its discovery, or when it could have reasonably been discovered.

Minor under age 9 at the time of the wrongful act: Before his/her eleventh birthday, or within two years of when injury could have reasonably been discovered.

Wrongful death: Within three years of the date of decedent's death, except where medical malpractice is alleged, in which case the malpractice statute of limitations is controlling.

State

Arbitration

Expert Testimony & Qualifications

Affidavit/

Certificate of Merit

Excess Coverage

Fund

Statute of Limitations

California

Arbitration is not mandated but is permitted.

Expert testimony is required to establish a prima facie case of medical malpractice, except where the fact finder can infer negligence from the facts.

Medical malpractice: within one year from discovery, with a maximum of three years from the date of the injury.

Foreign-object cases: Tolled to within one year of discovery of the injury, or where one reasonably should have discovered the injury.

Minors: within three years from the date of the wrongful act. For minors under the age of six, before the eighth birthday or within three years of the wrongful act, whichever is longer.

Colorado

Arbitration is permitted in contracts, so long as it is not a condition of service and the patient has ninety days to reconsider.

Experts must be generally licensed to practice in the state, in a similar field of practice as the defendant and be familiar with the standard of care.

A certificate of review must be filed by the claimant or his attorney within 60 days after a complaint is served. The certificate must state that an expert was consulted, and the expert is competent to express a medical opinion on the case at issue.

Medical malpractice: within two years of the date where the alleged negligent act took place, and where its cause is known or should have been known. In no case may a claim be brought more than three years after the cause that gave rise to the action is known, unless the act or omission: was knowingly concealed; involved leaving a foreign object in the body; or both the act and injury otherwise could not have been discovered through the reasonable exercise of due diligence.

Minors: Must file a claim before the minor's eighth birthday

Mentally incompetent or legally disabled: within two years of the discharge of disability status

Wrongful death: within two years of the date of death

State

Arbitration

Expert Testimony & Qualifications

Affidavit/

Certificate of Merit

Excess Coverage

Fund

Statute of Limitations

Connecticut

Arbitration is not mandated but is permitted, with a panel consisting of one attorney and two physicians who review a claim and determine liability. If the panel's report is unanimous, it may be submitted as evidence at trial.

Expert testimony is generally required, unless the lack of due care is so gross as to afford an almost absolute presumption of negligence.

Medical malpractice: within two years of the date when the wrongful act occurred or was discovered, or should have been discovered. No action may be brought more than three years after the act or omission occurred.

Wrongful death: within two years of the date of death, except that no claim may be filed more than five years after the alleged wrongful act or omission complained of took place.

Delaware

Review panels are mandatory. They review claims and advise the court on whether a breach of the standard of care occurred. Parties may request judicial review of the panel's determination, and the court may reverse any portion found to based on an error of law or based on unsupported evidence. A finding of negligence by the panel is admissible as prima facie evidence at trial, but is generally not considered a conclusive opinion.

Expert testimony is required to establish a deviation from the standard of care, unless the malpractice review panel has found a valid claim of negligence, or where the facts clearly demonstrate a lack of due care.

Physicians practicing in, or within 75 miles of Delaware are presumed competent.

Claims must be supported by a certificate of merit, which states that an expert has determined the defendant has deviated from the standard of care.

Personal injury or death: within two years of the date of injury. If the injury is not discovered, after reasonable due diligence, within the two years after the date of injury, the claimant has an additional year to file.

Minor under the age of six: within two years of the date of injury, or by the minor's sixth birthday, whichever is later.

D.C.

Arbitration is permitted but is not required. Arbitration awards have the effect of a final judgment, but a party may seek a judicial finding. In court, evidence admitted during arbitration is admissible, but can not be identified as such, nor can the arbitration hearing be identified as the source of the evidence.

Expert testimony is generally required to establish a breach in the standard of care.

Medical malpractice: within three years of the date of the injury, or when the plaintiff should have become aware of the injury through the exercise of reasonable due diligence

Minors, mentally incompetent, imprisoned: within three years of reaching the age of majority or the discharge of the disability

State

Arbitration

Expert Testimony & Qualifications

Affidavit/

Certificate of Merit

Excess Coverage

Fund

Statute of Limitations

Florida

Judges may refer cases to non-binding arbitration. Defendants may submit to binding arbitration, where defendants can limit non-economic damages in exchange for an admission of liability. All parties must agree to submit.

Expert testimony is required to establish a breach in the standard of care, unless the facts of the case allow an obvious demonstration of negligence to the layman.

When a plaintiff files, he/she must attach a verified expert medical opinion corroborating the existence of a supportable claim. Defendants who contest the claim must file a corroborating expert medical opinion supporting denial of the claim.

Yes. 1. The Florida Patient Compensation Fund, for excess med mal coverage; 2. The Florida Birth-Related Neurological Injury Compensation Plan, which compensates for severe, birth-related injuries, without regard to a finding of negligence against a health care provider.

Medical malpractice: within two years of the date when the injury was or should have been discovered. Claims must be filed within four years of the incident serving as the basis for the claim, unless the claimant is a minor or fraud exists.

Minors: Must file before his/her eighth birthday.

Cases of fraud: within seven years of the incident giving rise to the cause of action (or before a minor's eighth birthday).

Wrongful death: within two years of the date of death, except where a medical malpractice claim is asserted, and the malpractice limitations are controlling

Georgia

Arbitration is permitted but not required. Parties may agree in writing to submit. The decision of the arbitrator is entered into the minutes of the court where the arbitration request was made and has the effect of a final judgment. A party may appeal an arbitrator's ruling, but the Court will consider the ruling to be conclusive as to the facts of the case, unless the conclusion is not clearly supported by the evidence or is fraudulent.

Complaints must generally include an affidavit from an expert stating the facts justify a claim of negligence. If this is not filed in a timely manner, the case is subject to dismissal.

Personal injury or death for medical malpractice: within two years of the incident giving rise to the cause of action, with a five-year statute of repose.

Minors: same as all other cases, except the statute does not begin to run until the claimant's seventh birthday, and the statute of repose begins to run when the minor reaches age 10.

Discovery of a foreign object: within one year of discovery

State

Arbitration

Expert Testimony & Qualifications

Affidavit/

Certificate of Merit

Excess Coverage

Fund

Statute of Limitations

Hawaii

Medical malpractice review panels and arbitration exist and act as prerequisites to litigation. A panel must review all claims and file an advisory opinion with regard to liability and damages. Parties to the action may choose to accept the panel's decision, challenge it in court, or mutually agree to submit to arbitration of the claim.

Expert testimony is necessary to establish a prima facie case at trial, unless the facts are conclusive to establish negligence.

Medical malpractice: within two years of the injury, or when the claimant should have reasonably been aware of the injury, but in no case more than six years of the occurrence of the alleged negligent act.

Minors: If the minor is under six years of age, a claim must be filed within six years of the date of injury, or by the child's tenth birthday, whichever is later. Minors over the age of ten must file within six years from the date of the injury. The statute is tolled where the injury was not discoverable through the use of reasonable due diligence.

Idaho

All medical malpractice claims must be presented to a hearing panel established by the Idaho State Board of Medicine, but the proceedings are non-binding, informal and inadmissible.

Unless there is expert testimony given, the court will issue summary judgment in a medical malpractice action.

Medical malpractice: within two years from the time of the occurrence of the wrongful act or omission at issue

Foreign objects: within two years of when the claimant became aware of the injury, or one year following the date of the accrual, whichever is later Wrongful death: within two years of the date of death

Illinois

Arbitration is not mandatory but is permitted

To qualify as an expert, witnesses must meet explicit criteria (NOTE: held unconstitutional in 1995).

An affidavit must be attached to a complaint or filed within 90 days after filing the complaint. The affidavit must state that a qualified expert has determined that the case at issue has merit, and that the cause of action is reasonable (NOTE: held unconstitutional in 1995).

Medical malpractice: within two years from the date the claimant became aware of, or should reasonably have been aware of, the injury, but in no event more than four years of the incident giving rise to the cause of action.

Minors under age eight: within eight years from the date of the wrongful act or omission giving rise to the claim; no claim may be filed for medical malpractice after the injured party's twenty-second birthday.

Wrongful death: within two years from the date of death, but does not apply if the claim is based on a medical malpractice theory and that statute of limitations has expired.

State

Arbitration

Expert Testimony & Qualifications

Affidavit/

Certificate of Merit

Excess Coverage

Fund

Statute of Limitations

Indiana

Review of all med mal claims over $15,000 is required unless parties issue a written waiver. The review panel, consisting of one lawyer and three health care providers, must present an expert opinion as to whether the defendant(s) deviated from the standard of care and if that deviation resulted in the injury at issue. The opinion is admissible at trial but is not conclusive.

Plaintiffs may pursue a claim without a medical expert's testimony, but it is usually required to establish the standard of care and deviation therefrom. The opinion of any member of the medical review panel is sufficient to establish a prima facie case for negligence, and the member may be required to testify at trial.

Yes, to provide excess insurance coverage for qualified health providers. To qualify, providers must demonstrate financial responsibility by purchasing a minimum level of malpractice insurance, the amount depending on the provider.

Medical malpractice: within two years from the date of the alleged wrongful/omitted act, or from when the act or injury should have been discovered with the exercise of reasonable due diligence.

Minors under the age of six: before their eighth birthday. Other minors have no exemption, and fall under the adult statute of limitations.

Iowa

No requirements

Medical malpractice claims must be established through the use of expert testimony, unless the facts clearly establish negligence. Experts must be qualified in a way directly related to the medical problem at issue.

Personal injury or death: within two years of the date the claimant became aware of, or should have discovered through exercise of reasonable diligence, the injury. In no event may an action be brought more than six years from the date from which the alleged wrongful act or omission took place.

Kansas

No requirements

Expert testimony is required to establish negligence, except where the facts lack of reasonable care that is obvious to the lay person. To qualify as an expert, the person must have spent at least fifty percent of his professional time, over the two years preceding the case at issue, in clinical practice.

Yes, a Health Care Stabilization Fund provides coverage in excess of health care provider insurance limits mandated by law. The Fund is funded by physician surcharges.

Medical Malpractice: within two years from the date of the injury, or from when the injury should have been reasonably discovered, but no more than four years after the act giving rise to the complaint was alleged to have occurred.

State

Arbitration

Expert Testimony & Qualifications

Affidavit/

Certificate of Merit

Excess Coverage

Fund

Statute of Limitations

Kentucky

No requirements

Expert testimony is required to prove medical malpractice, unless the facts themselves establish a prima facie case.

Medical Malpractice, injury or death: within one year from the date the injury was or should have reasonably been discovered.

Minors and persons of unsound mind: the one year limitation tolls until reaching the age of majority or the disability is lifted.

Louisiana

Arbitration of medical malpractice claims is not required but is permitted.

For cases involving providers insured by the patient Compensation Fund, a medical review screening panel comprised of one attorney and three physicians reviews the facts and determines whether the evidence supports a conclusion of negligence. The panel's report is admissible in evidence and is considered expert testimony

Expert testimony is generally required to prove malpractice.

For cases involving providers insured by the Patient Compensation Fund, medical screening panel determinations constitute expert testimony.

Yes, a Patient Compensation Fund automatically covers state health care providers. This fund may also cover private health care providers only after proving they carry malpractice insurance that meets the state mandated coverage threshold.

Medical malpractice: within one year from the date of the discovery of the alleged wrongful act / omission, but not more than three years after the date the alleged wrongful act / omission occurred.

Wrongful death: within one year of the date of death.

Minors and incompetents: the adult standard applies

Maine

Arbitration is not required. Parties may agree in writing to have a pre-litigation screening panel issue a binding decision.

Expert testimony is required to establish a prima facie case of negligence, unless the facts can clearly demonstrate negligence to the layman.

Medical malpractice injury and wrongful death: within three years of the alleged wrongful act or omission.

Foreign object cases: statute of limitations does not accrue until the object is / should reasonably have been discovered.

Minors: within six years of the alleged wrongful act / omission, or within three years of reaching majority, whichever comes first.

Incompetents: within three years of the disability being lifted.

State

Arbitration

Expert Testimony & Qualifications

Affidavit/

Certificate of Merit

Excess Coverage

Fund

Statute of Limitations

Maryland

Arbitration of medical malpractice claims is generally required but can be unilaterally waived by any party to the action. Claims may be submitted for arbitration if both parties agree, but each side reserves the right to reject the decision and proceed to trial. At trial, the rejecting party must pay court costs for the opposing party if the new award is less favorable to the rejecting party.

Expert testimony is required to proceed with and prove negligence.

If a claim is filed at the state arbitration office, a certificate supporting the cause of action must also be filed. The certificate must be signed by a qualified expert who attests to the departure from the standard of care, and to proximate causation.

Medical malpractice: within five years of the date the alleged wrongful act or omission occurred, or three years from the time the alleged injury was discovered, whichever is earlier.

Wrongful death: within three years of the date of death.

Minors: statute begins to run at age eleven, unless the injury involves a foreign object or injury to the reproductive system, in which case the statute of limitations begins after the sixteenth birthday.

Massachusetts

No arbitration requirements

Expert testimony is generally required to support a medical malpractice claim.

Medical malpractice: within three years after the plaintiff learns, or reasonably should have learned, of the alleged wrongful act or omission, or no more than seven years after the alleged wrongful act or omission occurred.

Minors: same limitations period as adults, except a child under six may file before his ninth birthday

Incompetent: statute is tolled until the disability is lifted.

State

Arbitration

Expert Testimony & Qualifications

Affidavit/

Certificate of Merit

Excess Coverage

Fund

Statute of Limitations

Michigan

Binding arbitration of medical malpractice claims may proceed if agreed to and the damages claimed totals less than $75,000.

Expert testimony is generally required to establish negligence in a medical malpractice action. In all personal injury / wrongful death actions, an expert's scientific opinion is admissible only if a court finds the opinion is "reliable and will assist the trier of fact." The criteria for this standard involves review of the qualifications of the expert, and an evaluation of whether the stated opinion is supportable using accepted methodologies or principles within the appropriate field of study.

An affidavit must accompany all claims. The affidavit must: 1) state the applicable standard of care; 2) include an opinion by a qualified professional that the defendant breached this standard; 3) include the actions that should have been taken to avoid a breach in the standard; 4) state the manner in which the breach was the proximate cause of the plaintiff's injury.

The defendant's answer must include a similar affidavit of defense.

Medical malpractice: within two years from the date the alleged negligent act occurred, or six months from the date where the claimant discovered or should have discovered the alleged injury, but in no event more than six years after the wrongful act or omission giving rise to the claim occurred. No statute of limitations attaches to cases where fraud prevented the discovery of the basis of the claim, or in cases involving injury to the reproductive system.

Wrongful death: statute of limitations for medical malpractice attaches.

Minors: claimants under eight may file by their tenth birthdays, and claimants under thirteen may file before the fifteenth birthday if the claim involves injury to the reproductive system.

Insane patient: statute is tolled until one year after the disability is lifted.

State

Arbitration

Expert Testimony & Qualifications

Affidavit/

Certificate of Merit

Excess Coverage

Fund

Statute of Limitations

Minnesota

Arbitration of medical malpractice disputes is not required, but a system of voluntary, non-binding arbitration has been established to assist the courts.

Expert testimony is required to establish a prima facie medical malpractice claim, particularly with regard to the applicable standard of care deviation by the defendant, and the consequences of the deviation from the standard of care.

An affidavit must be filed within 180 days of filing a claim. The affidavit must state that a qualified expert has reviewed the facts and has determined that the defendant's actions deviated from the applicable standard of care.

Medical malpractice/personal injury/other: within four years statute of limitations from the date of harm.

Wrongful death: three years from the date of death, but no longer than four years from the date of harm.

Infant: within seven years from the date of the occurrence or one year after the age of majority, whichever is earlier.

Insanity: statute is tolled during the claimant's insanity.

Mississippi

No requirements

Expert testimony is required to assist the judge or jury in understanding the evidence, unless lack of informed consent is at issue, or in cases where the facts establish a prima facie case.

No, but hospitals may enter into joint trust fund agreements to provide coverage for liability.

Medical malpractice: within two years from the date the alleged wrongful act or omission occurred, or when it should reasonably have been discovered.

Minors under age six: within two years of the sixth birthday, or two years after the death of the child, whichever is shorter. The statute tolls for children without a parent or legal guardian until one presents itself, or until the child reaches the age of majority.

Insanity: Statute is tolled until the disability is removed. The claimant may file within two years of losing the disability.

State

Arbitration

Expert Testimony & Qualifications

Affidavit/

Certificate of Merit

Excess Coverage

Fund

Statute of Limitations

Missouri

No requirements

Expert testimony is generally required to establish a claim of medical malpractice.

An affidavit must be filed within 90 days after the action is filed. The affidavit must state that a qualified expert has been consulted, and the expert has found that the defendant failed to exercise reasonable care. Additionally, the expert must find proximate causation.

Medical malpractice: within two years of the occurrence of the alleged wrongful act or omission giving rise to the claim, but no more than ten years after the date of the alleged negligence.

Wrongful death: within three years after the date of death.

Foreign objects: within two years of the discovery of the object.

Montana

Arbitration is not required but is permitted. Malpractice actions not subject to a valid arbitration agreement must be sent to a medical review panel prior to trial.

Expert testimony is generally required to establish a cause of action for medical malpractice.

Medical malpractice: within three years of the date of the alleged negligence or the date when the negligence should have reasonably been discovered. No claims may be brought more than five years after the alleged negligence occurred.

Minors under four: Statute is tolled until the eighth birthday, or death, whichever is earlier, or during any period the child does not reside with a parent or guardian.

State

Arbitration

Expert Testimony & Qualifications

Affidavit/

Certificate of Merit

Excess Coverage

Fund

Statute of Limitations

Nebraska medical review panel must review all malpractice claims unless the claimant waives the review in writing. The panel determines whether the evidence supports the claim. The panel's determination is non-binding but is admissible in subsequent proceedings.

Yes, an excess liability fund exists for providers who establish proof of financial responsibility and pay a surcharge.

Medical malpractice: within two years after the act/omissions giving rise to the action, or within one year after the claimant discovered/should have discovered the act/omission.

Wrongful death: within two years after the date of death.

Under age 21: statute is tolled until claimant reaches age 21.

Mental disorder: Statute is tolled until the disorder is removed.

Nevada

All parties, their insurers and attorneys must attend and participate in a settlement conference before a district judge who is not assigned to the case. Failure to participate in good faith is grounds for sanction against the party and/or his attorney.

2002 law phases out screening panel.

Expert testimony from a provider who practices or has practiced in a substantially similar area as the type of practice engaged in a the time of the alleged negligence is required. However, in cases involving foreign objects, certain burns, injury to a body part not involved in treatment, or surgery of the wrong person/body part, negligence is presumed from the facts and no expert testimony is required.

Medical malpractice: within four years from the date of injury, or two years from the date the injury was or should have been discovered, whichever is earlier for injuries that occurred before October 1, 2002.

Within three years after the date of injury or two years from the date the injury was or should have been discovered, whichever is earlier for injuries that occurred after October 1, 2002

Wrongful death: same

Minors: Parents/guardians must determine, and same statute applies unless the claim involves birth defects or brain damage. In such cases, the statute is extended until the child reaches age ten. In cases involving sterility the statute of limitations is extended until 2 years after the child discovers the injury

Insane/minor ward of the state: Statute is tolled until the disability is lifted or the child is no longer a ward.

New

Hampshire

No requirements.

Expert testimony is generally required to establish negligence. There is also a statute that requires the expert to have been competent and qualified to have rendered care when the alleged injury occurred (NOTE: held unconstitutional).

Medical malpractice: within two years from the date of injury (NOTE: held unconstitutional)

Personal injury and wrongful death: within three years from the date of injury or death, but if the injury could not reasonably have been discovered within that time, the statute runs from the time the injury is discovered or should have been discovered.

Infant, mentally incompetent: within two years from reaching the age of majority or when disability is lifted.

State

Arbitration

Expert Testimony & Qualifications

Affidavit/

Certificate of Merit

Excess Coverage

Fund

Statute of Limitations

New Jersey

Required, if the amount in controversy is $20,000 or less. The arbitrator's determination in inadmissible and non-binding.

Expert testimony is required unless the facts and allegations are within a layman's common knowledge.

Plaintiffs must file an affidavit of merit, within 60 days of filing the claim, that includes statements from an "appropriate licensed person" that there exists a reasonable probability that the standard of care was not met.

Medical malpractice: within two years from the date of the alleged injury. Courts interpret this to toll the statute until the party reasonably becomes aware of the injury or that the injury is due to another's fault.

Wrongful death: within two years from the date of death.

Minors under 21, insane: Statute does not begin to run until age of majority or disability is removed.

New Mexico

Claims must be reviewed by the state medical review commission, but the commission's determination is non-binding and inadmissible.

Expert testimony is generally required unless negligence is so apparent that laymen could so comprehend.

Yes, an Excess Coverage Fund exists to provide coverage in excess of policy limits for providers who pay mandatory surcharge and carry coverage at a specified level.

Medical malpractice: within three years from the date the alleged malpractice occurred.

Wrongful death: same

Providers who are covered by Excess Coverage Fund: within three years from date the claimant knew/should have known of the injury.

Minors under six: until the ninth birthday (NOTE: Supreme Court has held statute unconstitutional in certain cases where timeframe is unfair).

State

Arbitration

Expert Testimony & Qualifications

Affidavit/

Certificate of Merit

Excess Coverage

Fund

Statute of Limitations

New York

Defendants may concede liability and agree to arbitration of damages.

Expert testimony is required unless within the ordinary experience and knowledge of laymen. Experts are generally not deposed prior to trial, and their identity need not be revealed prior to trial.

Claimants must file an affidavit of merit within 90 days of the complaint. The affidavit must state that the claimant's attorney has consulted with an expert or that such consultation could not occur. This does not apply in cases where the facts speak for themselves, or if the claimant provides information on the expert's qualifications / nature and scope of the expert's opinion during discovery.

Medical malpractice: within two and a half years of the act/omission giving rise to the complaint or from the end of a continuous treatment during which the act/omission occurred.

Wrongful death: within two years from the date of death

Incompetence: Statute is tolled until the disability (including age) ceases, but is tolled no longer than ten years in medical malpractice cases.

State

Arbitration

Expert Testimony & Qualifications

Affidavit/

Certificate of Merit

Excess Coverage

Fund

Statute of Limitations

North Carolina

Parties must submit to court-ordered mediation. Courts may dismiss the order for good cause.

Medical malpractice claims will be denied unless a qualified provider is willing to testify that the standard of care was not met, or if the facts speak for themselves. Expert testimony is required to establish the standard of care, unless the negligence is obvious to a layman. Experts must generally be licensed providers practicing or teaching in the same/similar specialty as the defendant.

Medical malpractice: within three years from the date of the last act giving rise to the action, or within one year of when the injury was/should have been discovered, but in no event more than four years from the date of the last act giving rise to the action.

Wrongful death: same, or within two years of death, whichever is shorter.

Foreign object: within one year from the date of discovery, but in no event more than ten years from the date of occurrence.

Minors: same, but the child's action may be brought any time before his 19th birthday.

Insanity: tolls the statute

North Dakota

Arbitration is not mandated, but parties must make a good faith effort to resolve the dispute via some sort of alternative dispute resolution prior to filing a lawsuit.

Expert opinions must be obtained within three months of filing a claim, unless the case involves obvious malpractice. Rules do not apply to cases involving foreign objects, lack of informed consent or performing a procedure of the wrong person, body part, etc.

Yes, the North Dakota Medical Malpractice Mutual Insurance Company provides excess coverage to its policyholders.

Medical malpractice: within two years of the act or omission giving rise to the action, or within two years from the date the injury was/should have been discovered, but in no event more than six years after the date of injury.

Wrongful death: same, but courts recognize that the injury should have been discovered on the date of death, so within two years after date of death.

Minors, insane, imprisoned: Statute is tolled during the disability, but for no more than five years for the insane and/or imprisoned, and not more than twelve years for a minor. Action must be brought within one year after the disability ceases.

State

Arbitration

Expert Testimony & Qualifications

Affidavit/

Certificate of Merit

Excess Coverage

Fund

Statute of Limitations

Ohio

Arbitration is permitted but not required. The determination of the arbiter is non-binding and inadmissible.

Expert testimony must be presented to establish standard of care, breach and proximate cause.

Yes (NOTE: Held unconstitutional, as violative of the exclusive authority of the Court to promulgate rules of procedure).

Medical malpractice: within one year after the claimant discovers, or should have reasonably discovered, the injury, or when the physician-patient relationship for that condition terminates, whichever is later. In no event may claim be brought after four years from the injury on which the claim is based. (NOTE: The four-year ceiling has been held unconstitutional if claimant did not know/could not reasonably have known of his injury).

Wrongful death: within two years after the death.

Minor, unsound mind: statute is tolled until the disability is lifted.

Oklahoma

Not required

Expert witnesses must be used to establish standard of care, unless the alleged negligence is apparent to a layman.

Medical malpractice: within two years from the date upon which the claimant know/should have known of the alleged injury.

Wrongful death: within two years from the time of death.

Minors under 12: within seven years from the date of injury.

Minors 12 and over: within one year from obtaining age of majority, but not more than two years from the date of injury.

Incompetence: within seven years from the date of the injury, and within one year after deemed competent

Oregon

Not required

No affidavit of merit required.

Expert testimony is required to establish a prima facie case, unless the negligence is obvious to a layman.

Medical malpractice: within two years of the date an injury is or should reasonably have been discovered, but in no event more than five years from the date of treatment.

Wrongful death: within three years after the injury causing the death is or should reasonably have been discovered, but in no event more than three years after the date of death or five years as applicable to the medical malpractice statute.

Minors through age 18, insane: Statute is tolled

State

Arbitration

Expert Testimony & Qualifications

Affidavit/

Certificate of Merit

Excess Coverage

Fund

Statute of Limitations

Pennsylvania

Mandatory arbitration law held unconstitutional based on right to trial by jury.

Arbitration is permitted upon the parties' consent. Within 90 days of discovery, court must hold a hearing, which may be mediation. (NOTE: Supreme Court suspended 90-day hearing requirement as inconsistent with its exclusive rulemaking authority in this area).

Expert testimony is required to establish the requisite standard of care, unless negligence is obvious to a layman. Experts must be a physician who is actively engaged in clinical practice or teaching and experienced in the care at issue. Experts on the standard of care must be the same or similar specialty and board certified, if applicable, as the defendant. The court can waive this requirement if the expert has sufficient training, experience, or knowledge as a result of active practice or teaching within five-years prior to the incident.

Generally, an attorney signature of a complaint certifies that the attorney has a report from a qualified expert stating that there is a basis for the negligence case. Exceptions exist where no opinion is necessary, or where the expert cannot reach a conclusion without discovery (NOTE: Suspended by the Court as inconsistent with its exclusive rulemaking authority in this area).

2002 law phases out the CAT fund.

Medical malpractice: within two years of the date of treatment. The statute is tolled until the plaintiff knows or should know of: 1) the injury; 2) the operative cause of the injury; and 3) the causative relationship between the injury and the operative conduct.

In no event may an action be brought later than seven years from the time of the alleged conduct, except for cases where a foreign objects was unintentionally left in the body.

Wrongful death: within two years of the date of death

Insanity/imprisonment: same

Minors: the 7-year statute of repose is tolled until the minor reaches 20 years of age.

Rhode Island

Not mandated

Experts must be duly qualified to knowledge, skill, experience, training or education.

Medical malpractice: within three years of the date of the incident, or the date the claimant knew/should have known of the act.

Wrongful death: same

Minors/mentally ill: within three years following age of majority or disability

State

Arbitration

Expert Testimony & Qualifications

Affidavit/

Certificate of Merit

Excess Coverage

Fund

Statute of Limitations

South Carolina

Not mandated, but permitted

Expert testimony must be introduced to prove the defendant did not meet the standard of care, unless a layman would be capable of inferring negligence.

Yes, a patient compensation fund benefits participating licensed providers when damages exceed $100,000 per incident and $300,000 in the aggregate.

Medical malpractice: within three years from the date of the occurrence, or within three years from the date it should have been discovered, but in no event more than six years from the date of the occurrence.

Wrongful death: same

Discovery of a foreign object: within two years from the date of discovery.

Minority: statute is tolled

Insanity: statute is tolled for no more than five years from the date of the occurrence, or one year after the disability is lifted

South Dakota

Not mandated, but permitted. Arbitration panel determines existence of liability, then gives parties 30 days to agree on damages. If parties fail to agree, panel determines.

Expert testimony must be introduced to establish negligence.

Medical malpractice: within two years from the date of the alleged malpractice.

Foreign object: Statute does not commence until the end of treatment.

Minority/mental illness: Statute is tolled. A claim may be brought within one year of lifting the disability, but claims must be brought within five years of the action in cases of mental illness.

Tennessee

Not mandated, but permitted.

Expert witnesses must be licensed to practice in the specialty in which the alleged malpractice occurred.

Medical malpractice: within one year after discovery of the injury, but no more than three years after the alleged negligence occurred, except in cases of foreign objects.

Minors, unsound mind: within one year following removal of the disability.

State

Arbitration

Expert Testimony & Qualifications

Affidavit/

Certificate of Merit

Excess Coverage

Fund

Statute of Limitations

Texas

Not mandated by state law, but counties are granted the option to adopt alternative dispute resolution.

Expert witnesses must be physicians who are board certified or who have other substantial experience relevant to the claim.

Plaintiff must post a bond / file a report from an expert, within 90 days of filing notice of a claim. Provider witness reports must be provided to all defendants within 180 days of filing.

Medical malpractice: within two years of the breach/tort or completion of treatment. For cases of continuous treatment, the period begins on the last day of treatment, or, if the date of the breach/tort is ascertainable, the period begins on that date.

Wrongful death: same (for medical malpractice)

Minors under age 18: any time before the claimant's 20th birthday.

Utah

Plaintiffs must file a notice of intent to file a suit. This is reviewed by a prelitigation screening panel. The panel's determination is inadmissible at trial. The determination is non-binding, unless the parties agree otherwise.

Expert testimony must be presented to establish a deviation below the standard of care, unless the facts are knowledgeable to a layman.

Medical malpractice: within two years of the date the injury was/should have been discovered, but in no event more than four years after the negligent act.

Wrongful death: same

Foreign object: within one year from the date the object was/should have been discovered (four-year limit does not apply)

Minors/disabled: Same (NOTE: limits ruled unconstitutional for minors)

Vermont

Arbitration is mandatory for claims arising on/after July 1, 1995. Unless the parties agree to binding arbitration, the determination by the arbitor is non-binding.

Expert testimony is required to establish a deviation from the applicable standard of care, unless the negligence is so apparent as to be comprehensible to an average juror.

Medical malpractice: within three years from the date of the alleged conduct, or two years from the date the plaintiff knew/should have known of the alleged injury, but in no event more then seven years after the alleged conduct.

Foreign object: within two years from the date the object was discovered (seven-year limit does not apply)

Disabled: Same, following removal of the disability

State

Arbitration

Expert Testimony & Qualifications

Affidavit/

Certificate of Merit

Excess Coverage

Fund

Statute of Limitations

Virginia

All claimants must file notice of claim with the court. The Supreme Court appoints a medical malpractice review panel to assess the validity of the claim. The panel considers the evidence and determines whether the evidence supports a conclusion that the standard of care was violated, and that the deviation proximately caused the injury at issue. The panel's findings are non-binding but admissible. Panelists may be called as witnesses.

Parties may agree to binding arbitration in advance of treatment, but the plaintiff must have the ability to opt out of the proceeding within 60 days after termination of treatment.

Expert witness testimony must be introduced to support a claim. Alternatively, the testimony of a person who is qualified to testify to the standard of care in that community is acceptable. If the expert is a physician, he must have been in active clinical practice in the field about which he will testify within one year of the date of the alleged incident. Physicians licensed in Virginia are presumed qualified.

Generally, no.

Fund covering permanently disabled infants suffering from birth-related neurological injury was established in 1987. These infants are allowed exclusive tight of recovery. The Fund pays for lifetime medical expenses, and 1/2 of the state weekly wage after the child achieves age 18. Physicians and facilities must pay surcharges to the fund to qualify for coverage under the law.

Medical malpractice: within two years from the date the cause of action accrued.

Foreign objects/concealment: within one year of the date the object/injury is discovered/should have been discovered. In no event may an action be brought within ten years from the date of the cause of action.

Wrongful death: within two years of death

Minors: within two years of the date of the last act of negligence. If the minor is under age 8, the action must be brought by the minor's 10th birthday unless the discovery provision applies.

Incapacitated: Statute is tolled until the incapacity is lifted, unless the person is represented by a guardian or committee, in which case the one-year limitation will apply.

West Virginia

Expert testimony is generally required to establish a deviation from the applicable standard of care. The expert must be engage or qualified in the same or substantially similar field as the defendant. Courts make exceptions to this requirement when common knowledge suffices or where the facts establish a prima facie case.

Medical malpractice: within two years of the date the injury occurred, or the date the claimant discovered/should have discovered the injury. In no event may an action commence more than ten years after the injury.

Wrongful death: within two years after death.

Minors under 10: within two years of the injury or prior to the claimant's 12th birthday, whichever is longer.

State

Arbitration

Expert Testimony & Qualifications

Affidavit/

Certificate of Merit

Excess Coverage

Fund

Statute of Limitations

Washington

Mediation is mandatory as of 1993. This tolls the statute of limitations for one year. The determination of a mediator is non-binding.

Expert testimony is often, but not always, required to establish a deviation from the applicable standard of care. Cases where such testimony is not required can include foreign objects cases, and cases in which the conduct of the defendant is so grossly negligent that a layman could easily recognize it.

Medical malpractice: within three years of the act/omission alleged to have caused the injury, or one year after discovery of the act or omission, whichever is longer. In no event may an action be brought more than eight years after the date of the alleged act/omission.

Wrongful death: within three years after death.

Fraud, intentional concealment, discovery of a foreign object: statute of limitations is tolled.

Minors: Limitations period is tolled until age 18

Wisconsin

Mediation is available. Claimants may request mediation prior to commencing suit, in which case the statute is tolled until completion of the mediation. They may also request mediation within 15 days after filing a complaint, in which case the suit is stayed until the mediation is complete.

Findings of mediation panels are inadmissible.

Expert witness testimony is generally required to establish the standard of care and deviation therefrom, but it is not required if the issue involves routine care within the jury's common knowledge.

Yes, physicians are required to pay annual assessments to the Wisconsin patients Compensation Fund. The Fund compensates claimants whose damages exceed a defendant's coverage limits.

Medical malpractice: within three years from the date of injury, or one year from the date of discovery, but in no event more than five years from the date of the negligent act. (NOTE: recently held unconstitutional as applied to plaintiffs that could not reasonably have known of an injury)

Minor: same, or by the time the minor reaches age 10, whichever is longer.

Disabled: within two years from the date the disability has been lifted, but in no event more than five years from the date of the negligent act.