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Special medical malpractice statutes.

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 jury.

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 accompanying statute.

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 versus trial.

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 discovery.

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 process.)

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 parties.


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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