Local statutes must be consulted for restrictions that apply to actions
against health care providers. Many states have enacted special medical
malpractice statutes as a response to what some contend is another
"medical malpractice crisis," said to have been brought about by an
increase in the number of medical malpractice actions, substantial jury
awards, and a resulting increase in liability insurance rates for health
care providers. The requirements of these statutes must be satisfied
before a medical malpractice plaintiff can get his or her claim before a
There are several types of statutes. Some require arbitration; most
create a special panel to screen claims (a few combine both to form a
hybrid arbitration panel), and some place a limit on the amount the
patient may recover. There are also numerous miscellaneous provisions.
In some states, it is necessary to study court rules as well as the
statutes that have been enacted, and in others the special law applying
to medical malpractice cases is a procedural rule without an
It has been argued that these laws will benefit the public by helping
keep down costs of health care, and perhaps further by persuading
certain health care providers to continue to provide services that they
might otherwise abandon due to high insurance premiums or the
unavailability of insurance coverage. But one questions whether these
laws are always in the interest of the injured patient, whose rightful
recovery may now be limited, and whose financial burden might even be
increased by prelitigation procedures or other requirements. A few ofthe
statutes, or parts thereof, have been declared unconstitutional.
Some states have placed limits on the amount a plaintiff can recover in
actions against health care providers. In California, noneconomic and
nonpecuniary damages are limited to $250,000. Also, California law
allows the periodic payment of judgments in excess of $50,000, and the
courts must permit the introduction into evidence of collateral sources
of compensation received or to be received by a medical malpractice
plaintiff from insurance policies, social security or otherwise.
Furthermore, there is a restriction on attorney fees: in a medical
malpractice case, a contingent fee cannot exceed 40/% of the first
$50,000 of recovery, 331/3/% of the next $50,000, 25/% of the next
$500,000, and 10/% of any recovery beyond $600,000. 25.16 Arbitration
Arbitration as a means of disposing of medical malpractice claims is
advocated by many as the best solution. In most cases, however, a
malpractice case cannot be decided justly without the total factual
information, and this information is only going to be brought out by way
of judicial discovery procedures-mainly through the taking of
depositions. In arbitration, the plaintiff may not have "full rights" of
Under the usual arbitration scheme, the malpractice plaintiff appoints
one arbitrator and the physician or hospital appoints another. These two
arbitrators then select a third. This system is fraught with difficulty.
In the beginning, there is the natural tendency for both sides to select
biased arbitrators, and malpractice plaintiff's attorneys and insurers
soon learn who these are. Thus, the die is cast. Then, difficulty is
encountered in selecting the third or allegedly "impartial" arbitrator.
Weeks, months, and even years can go by before the arbitrators actually
arbitrate. (Arbitration, it is argued, is supposed to speed up the
When, finally, arbitration does begin, for some reason there is a
tendency on the part of the participants to slack off on their
preparation. Investigation is minimized and often a "slap-dash"
presentation is undertaken by both sides. Now, suddenly, time becomes of
the essence, and the arbitrators become more concerned with expediency
than with justice.
In certain minor medical malpractice cases perhaps arbitration serves a
worthwhile purpose. In a substantial case, however, it is doubtful
whether this method of resolving disputes can accomplish justice for the
Excerpted from Medical Malpractice, Third Edition, 25
by David M. Harney
Copyright 1993, The Michie Company, 1-800-446-3410
All rights reserved. Personal use only. No distribution or
republication without prior permission from the publisher.
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