History of Medical Malpractice Claims

Medical malpractice lawsuits have existed for many years. During its evolution, this type of lawsuit was governed by common law and interpreted by judges. While the judiciary is still involved today, there have been movements to curb the enormity of medical malpractice cases filed in the United States.

Early History

According to Stuart Speiser, author of the "American Law of Torts," medical malpractice emerged in English common law in the 19th century. This body of law involves torts, which are wrongful acts that result in injury. Generally, medical malpractice is rooted in the idea of negligence, which is defined as not using reasonable care. If a person fails to exercise reasonable care, that person might be liable if it was reasonably foreseeable that his conduct or lack of conduct resulted in injury.

20th Century History

In the 20th century, medical malpractice claims increased, particularly in the latter part of the century. As a result, state legislators sought to change the law applicable to medical malpractice in an effort to reduce the number of cases and to get the industry regulated more intensely. This activity is known as tort reform.

Medical Malpractice Reforms

Several changes emerged after state legislatures acted. Initially, some states established dispute resolution as an alternative to court as a forum. However, some states do not require that. Connecticut is one of the states that does not require arbitration in medical malpractice. However, if the physician and the patient seek to settle the matter through arbitration, the case will be decided by one lawyer and two medical doctors. In addition, some states have enacted pre-screening of medical malpractice cases, such as Alaska.

The Future of Medical Malpractice Reform

There is substantial political and economic pressure toward continuing to change medical malpractice rules. One area frequently examined is whether there should be a limit on the amount of damages in a medical malpractice case. The other significant area is how much compensation an attorney should be permitted to receive when representing a medical malpractice plaintiff. Frequently, the medical malpractice attorney takes a contingency fee. Usually, the amount the attorney receives is one-third of the total, after the legal filing fees and other costs are subtracted. This is an area where many believe there should be a limit. Finally, an area of tort reform is in the area of the statute of limitations. This effort seeks to limit the amount of time a person has to file a medical malpractice case against a medical provider.

American Medical Association's Position

The American Medical Association has claimed that limiting damages in medical malpractice cases might lead to improved patient access to care, lower medical liability premiums and lower health care costs. The AMA performed research printed in 2006 and 2007 in medicolegal journals that indicated the reduction in medical malpractice damages resulted in improved medical care, lower insurance for physicians and lower costs. The AMA continues to advocate for tort changes.

References

• The Henry J. Kaiser Foundation Medical Malpractice Policy
• Speiser, Stuart M., et al., American Law of Torts, Vol. 4, Sec. 15.10 (West, 1987).

Resources

• Speiser, Stuart M., et al., American Law of Torts, Vol. 4, Sec. 15.10 (West, 1987).