The legality of state limitations on medical malpractice tort damage awards

This study reviews the legal status of state medical malpractice damage limitations or "caps" now being challenged regularly on federal and state constitutional grounds. The case law resulting from the many state tort damage control laws passed during the mid-1980s in response to the "tort-insurance" crisis is examined, and the legal and economic implications of that litigation are analyzed. This study concludes that (1) the outcome of litigation depends largely on whether the challenge is heard in a federal or state court, (2) challenges based on the right to a jury trial are more likely to be successful, and (3) the influence of cap laws on insurance rates and availability to date has been minimal.     

The effect of malpractice law on physician supply: Evidence from negligence-standard reforms

We explore whether the composition of the physician workforce is impacted by the clinical standards imposed on physicians under medical liability rules. Specifically, we explore whether the proportion of non-surgeons practicing in a region decreases—and thus whether the proportion of surgeons increases—when liability standards are modified so as to expect that physicians practice more intensively. For these purposes, we draw on a quasi-experiment made possible by states shifting from local to national customs as the basis for setting liability standards. Using data from the Area Health Resource File from 1977 to 2005, we find that the rate of non-surgeons among practicing physicians decreases by 2–2.4 log points (or by 1.4–1.7 percentage points) following the adoption of national-standard laws in initially low surgery-rate regions—i.e., following a change in the law that effectively expects physicians to increase their use of surgical approaches.     

Health and life insurance as an alternative to malpractice tort law

Background  

Tort law has legitimate social purposes of deterrence, punishment and compensation, but medical tort law does none of these well. Tort law could be counterproductive in medicine, encouraging costly defensive practices that harm some patients, restricting access to care in some settings and discouraging innovation.     

对《中华人民共和国侵权责任法（草案）》医疗损害责任的立法建议

第十一届全国人大常委会第六次会议第二次审议了《中华人民共和国侵权责任法（草案）》，但医疗损害责任的内容却引起社会各界的广泛关注。从条款内容上看，笔者认为草案显得不够全面、具体，不足以解决目前司法实践中普遍存在的医疗纠纷问题。所以，非常有必要完善相应立法建议。其期待完善《中华人民共和国侵权责任法（草案）》医疗损害责任部分的立法，促进和谐医患关系的构建。