S. 1232, the "Medical Injury Compensation Fairness Act of 1991, is discussed. S. 1232 may be too innovative to be enacted in its present form, but there is immense potential for combining its ...encouragement of private reform of poorly designed, cost-increasing malpractice rights with other federal proposals that seek to make good-quality health care accessible to all Americans at reasonable cost.
Although the use of arbitration in the commercial arena has increased tremendously in recent years, there has been a reluctance to adopt arbitration of medical malpractice claims in place of ...litigation. Some of the factors why arbitration has not become predominant in medical malpractice include judicial hostility, failure of state statutes designed to encourage arbitration, and a lack of hard evidence that arbitration works. Attributes that would make malpractice arbitration successful in the future are discussed.
In medical malpractice litigation, how the standard of care is determined is of obvious importance, since failure by a defendant-physician to meet the relevant standard of care constitutes ...negligence. Any effort to reform how standard-of-care determinations are made should start with an understanding of the entire claims resolution process. The usual image - that of opposing experts testifying at trial is both incomplete and misleading. Most cases are either settled by the parties or abandoned by the plaintiff, short of trial. Insurers' closed claim files, representing a sample of medical malpractice lawsuits filed in North Carolina between 1991 and 1995, as well as the matching court files, were reviewed. As a result, unique and highly detailed information about those cases was obtained. It is concluded that a shift in standard-of-care determinations to a more empirical, scientifically-based inquiry would not be likely to change the dynamics of the settlement process, where the emphasis is on bargaining and negotiation, rather than on reaching conclusions about the standard of care.
Medical malpractice: lessons for reform Bovbjerg, Randall R; Metzloff, Thomas B
Law and contemporary problems,
1991 Winter-Spring, Letnik:
54, Številka:
1-2
Journal Article
Recenzirano
Problems and proposals within medicine, law, and insurance; US, chiefly; 15 articles.
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