Law Commons^™

A Taste Of Their Own Medicine: Examining The Admissibility Of Experts' Prior Malpractice Under The Federal Rules Of Evidence, Neil Henson

Vanderbilt Law Review

Medical malpractice litigation is challenging for both plaintiffs and defendants. The intersection of legal issues with complex medical theories creates a dispute focused on expert witnesses, which leads to greater litigation expenses and cumbersome legal proceedings.' As one scholar observed, "medical malpractice has proven to be ... an unpleasant quagmire of unending skirmishes and full-scale engagements spread across a shifting battlefield." That analogy is fitting considering the stakes of a medical malpractice case-the injured patient's emotional, physical, and financial well-being may be contingent on a successful outcome, while the doctor may perceive even the threat of litigation as detrimental to …

Uncovering The Silent Victims Of The American Medical Liability System, Joanna Shepherd

Vanderbilt Law Review

A frequently overlooked problem with the current medical liability system is the vast number of medical errors that go uncompensated. Although studies indicate that 1% of hospital patients are victims of medical negligence, fewer than 2% of these injured patients file claims. In this Article, I explain that many victims of medical malpractice do not file claims because they are unable to find attorneys willing to take their cases. I conducted the first national survey of attorneys to explore medical malpractice victims' access to the civil justice system. The results from the survey indicate that the economic reality of litigation …

"Judicial Hellholes:" Medical Malpractice Claims, Verdicts And The "Doctor Exodus" In Illinois, Neil Vidmar, Russell M. Robinson Ii, Kara Mackillop

Vanderbilt Law Review

Beginning about the year 2000, physicians around the nation experienced an explosive jump in their professional medical liability insurance premiums. The state of Illinois has been identified as one of the "crisis" states by the American Medical Association ("AMA") insofar as cost and availability of liability insurance is concerned. Madison and St. Clair counties, just across the Mississippi River from St. Louis, have garnered particular attention, acquiring the label "judicial hellhole" for medical malpractice claims. The notoriety is so great that President Bush visited Madison County in January 2005 as part of his campaign for a nationwide $250,000 cap on …

Medical Malpractice Standard-Setting: Developing Malpractice "Safe Harbors" As A New Role For Qios?, James F. Blumstein

Vanderbilt Law Review

Concern about medical malpractice issues has reemerged, again stemming from escalating costs in some geographic regions and sectors of medical practice. The Bush Administration has (so far unsuccessfully) supported a cap on noneconomic loss as a strategy for coping with the cost aspects of those medical malpractice concerns, the model being the California approach.

Although the overall initiative for reform has considerable merit, the damage-cap has its opponents and its drawbacks. The damage-cap approach is remedy-centric, focusing on the scope of remedy as a vehicle for containing costs in the area of medical malpractice. By concentrating on remedies, the reform …

Plaintiffs' Lawyers, Specialization, And Medical Malpractice, Stephen Daniels, Joanne Martin

Vanderbilt Law Review

Our interest is in medical malpractice as an area of specialized practice for plaintiffs' lawyers, and we want to explore this area because plaintiffs' lawyers are key actors in the medical malpractice system. An understanding of their role is necessary in identifying what problems may exist in this system and in evaluating both proposed and enacted solutions. Indeed, some reforms appear to be specifically aimed at plaintiffs' lawyers who handle medical malpractice cases-especially the repeat players whose experience and expertise may give them, and hence their clients, a strategic advantage.

Like most of the political rhetoric surrounding medical malpractice, the …

Bridging The Relational-Regulatory Gap: A Pragmatic Information Policy For Patient Safety And Medical Malpractice, William M. Sage, Joshua G. Zivin, Nathaniel B. Chase

Vanderbilt Law Review

The medical malpractice crisis of the last few years has tapped a lot of scholarly energy. Time not spent on original research-adding to the store of knowledge about the medical malpractice system-is often spent communicating with policymakers and the public. These experiences have led us to think a lot about the amount and quality of information circulating within or concerning the medical malpractice system, and about public policy reforms that would improve information flow in the future.

No grand theory has emerged from this meditation. Instead, we have formed definite, though not immutable, opinions about a desirable information policy for …

Putting The Caps On Caps: Reconciling The Goal Of Medical Malpractice Reform With The Twin Objectives Of Tort Law, Kyle Miller

Vanderbilt Law Review

Medical malpractice litigation is not a modern invention. Rather, it has been part of the American legal system since before the Revolution,1 and the most recent medical malpractice insurance crisis is not the first this country has known. However, losses to insurers during the earlier medical malpractice insurance crises pale in comparison to the ailments of this most recent crisis.2 Though this most recent medical malpractice insurance crisis seems to be coming to a close,3 by examining the causes of this crisis and enacting changes at present, this country may be able to avoid future crises. Of course, the first …

Medical Malpractice Litigation And Tort Reform: It's The Incentives, Stupid, David A. Hyman, Charles Silver

Vanderbilt Law Review

Health care providers and tort reformers invariably claim that the medical malpractice litigation system is rife with behaviors that are irrational, unpredictable, and counter-productive. They attack civil juries, asserting that verdicts are skyrocketing without reason, are highly variable, and bear little or no relation to the merits of plaintiffs' claims. They complain about patients, arguing that the few with valid claims sue rarely, while the many who receive non- negligent treatment sue all the time. They attack greedy lawyers, alleging that they rake in obscene profits by routinely filing frivolous complaints. They complain that compensation flows almost randomly, winding up …

What Are We Reforming? Tort Theory's Place In Debates Over Malpractice Reform, John C.P. Goldberg

Vanderbilt Law Review

Those who are reforming medical malpractice law, or studying its reform, ought to attend to tort theory. This is not because theory will settle difficult policy debates. But it does enable reformers and scholars to be more aware of how under-appreciated and possibly dubious assumptions or inferences might be skewing their analyses. In this Essay, I aim to make this point with two examples.

My first example concerns under-litigation-the apparent fact that a substantial percentage of persons with injuries plausibly traceable to malpractice never sue their doctors.' Assume this is a real phenomenon. What are we to make of it? …

Million Dollar Medical Malpractice Cases In Florida: Post-Verdict And Pre-Suit Settlements, Neil Vidmar, Kara Mackillop, Paul Lee

Vanderbilt Law Review

Beginning around the year 2000, the cost of medical liability insurance for doctors sharply increased, allegedly doubling in some specialties. As a result, medical malpractice litigation has once again occupied center stage in public debate about tort reform.' Large jury verdicts are cited by insurers, physicians, and defense attorneys as unwarranted and corruptive of the medical system because they set the bargaining rate around which plaintiff and defense lawyers negotiate settlements. One of the most commonly proposed remedies is a cap on the amount that can be awarded for general damages, often called "non-economic damages" or "pain and suffering," following …

Erisa Preemption Of Medical Malpractice Claims In Managed Care: Asserting A New Statutory Interpretation, Karla S. Bartholonew

Vanderbilt Law Review

Congress enacted the Employee Retirement Income Security Act of 1974 ("ERISA) to protect employee interests and ensure a uniform body of law for pension and benefit plans. The statute's expansive preemption clause and preclusion of extra-contractual damages have since been used to immunize Managed Care Organizations ("MCOs") from liability for patients injuries resulting from medical malpractice. Because plaintiffs with preempted claims may receive only the remedies provided for under ERISA-the right or benefit due under the plan-many injured patients have been left with no meaningful remedy.

"[N]ot a model of legislative drafting,"" the statute's broad preemption clause provides that state …

Erisa Preemption Of Medical Malpractice Claims In Managed Care: Asserting A New Statutory Interpretation, Karla S. Bartholomew

Vanderbilt Law Review

If Congress wants the American citizens to have access to adequate health care, then Congress must accept its responsibility to define the scope of ERISA preemption and to enact legislation that will ensure every patient has access to that care.' Congress enacted the Employee Retirement Income Security Act of 1974 ("ERISA) to protect employee interests and ensure a uniform body of law for pension and benefit plans. The statute's expansive preemption clause and preclusion of extra-contractual damages have since been used to immunize Managed Care Organizations ("MCOs") from liability for patients injuries resulting from medical malpractice. Because plaintiffs with preempted …

A Fault-Based Administrative Alternative For Resolving Medical Malpractice Claims, Kirk B. Johnson, Carter G. Phillips, David Orentlicher Orentlicher M.D., Martin S. Hatlie

Vanderbilt Law Review

The recurring crises in medical malpractice litigation have been widely discussed and documented over the past two decades.' In response to these crises, a growing consensus has emerged among legislatures, government agencies, and scholars in favor of tort reform. Indeed, virtually every state has passed some tort reform legislation.'Despite the reforms, several serious problems persist in medical malpractice. The current tort system does not compensate injured patients adequately or equitably, nor does it deter negligent practices sufficiently. These failings occur despite the increasingly high costs to society of the tort system. Particularly troublesome is the impact of these crises on …

Motivation And Tort Law: Acting For Economic Gain As A Suspect Motive, Martin A. Kotler

Vanderbilt Law Review

The asserted unimportance of the defendant's motive underlying acts giving rise to tort liability is part of the conventional wisdom of most writers of basic tort texts.' Frequently, the irrelevance of the defendant's motivation is considered so obvious that many writers fail to discuss it at all, or discuss it only in the limited context of punitive damages. Virtually all of the literature that considers the significance of motive in tort law deals with either altruism, primarily in the rescue context, or spite, primarily in the punitive damages context. However,little, if any, of the literature considers the legal treatment of …

Recent Cases, Robert E. Banta, Oby T. Brewer, Iii, Cornelia A. Clark, I. Terry Currie, Douglas W. Ey, Jr.

Vanderbilt Law Review

Constitutional Law-First Amendment-School Authorities May Prohibit High School Student's Distribution of Sex Questionnaire to Prevent Possible Psychological Harm to Other Students Robert Edward Banta

Plaintiff, editor of a high school publication,' brought suit in federal court seeking an order compelling defendant school officials to allow the student publication to distribute a sex questionnaire,to students in the high school and to publish the results. Plaintiff claimed that defendants had not shown that the planned distribution would disrupt school activities and that, therefore, defendants'prohibition of the questionnaire violated 42 U.S.C. § 19831 and the first and fourteenth amendments. Pointing to potential psychological …

In Search Of A Standard Of Care For The Medical Profession: The "Accepted Practice" Formula, Joseph H. King, Jr.

Vanderbilt Law Review

American lawmakers and jurists are or soon will be confronted with a number of vital decisions affecting the professional liability of members of the healing arts. At issue is the continuing validity of the present system of fault based liability for medical malpractice, as well as the essential nature such a system should assume if it survives. Though often divorced, the two issues are inextricably wedded. The survival of the fault based system will assuredly depend in large measure on whether it can be made to work more efficiently and more consistently while meeting its espoused goal of loss redistribution …

Failure To Inform As Medical Malpractice, Stephen L. Edwards

Vanderbilt Law Review

It has long been recognized in American law that a proper patient-physician relationship is founded upon the technical competency of the physician. Before the advent of cases dealing with informed consent, a patient who had given his consent to proposed treatment could recover for injuries only when the physician had acted incompetently in the administration of the treatment. Within the past fifteen years, however, the courts have recognized that the maintenance of a proper patient-physician relationship depends not only upon the technical competency of the physician, but also upon the presence of effective communication between the two parties. Therefore, recent …

Modern Techniques In The Preparation And Trial Of A Medical Malpractice Suit, Fitz-Gerald Ames Sr

Vanderbilt Law Review

Though it is true that in malpractice suits more than in any other type of litigation, the plaintiff must have a strong case on the merits, it is equally important and almost a necessity in most malpractice cases that patient's counsel carefully and thoroughly condition the jurors' minds from the very outset to a psychological acceptance of this type of litigation. Far too many veniremen, before they have been selected as trial jurors in a malpractice suit, have the attitude that (1) a "malpractice" suit connotes conduct either criminal, quasi-criminal or unethical on the part of the doctor or hospital; …