The forgotten third: Liability insurance and the medical malpractice crisis

Health Affairs

Volumn 23, Issue 4, 2004, Pages 10-21

  Sage, William M ^a,b  

^a Och Spine at New York Presbyterian Hospitals   (United States)

^b PEW CHARITABLE TRUSTS   (United States)

Author keywords

[No Author keywords available]

Indexed keywords

HEALTH CARE ORGANIZATION; HEALTH CARE POLICY; HEALTH CARE SYSTEM; HUMAN; INDUSTRIALIZATION; INSURANCE; LAW SUIT; MALPRACTICE; MEDICARE; REVIEW; SAFETY;

COST CONTROL; HEALTH CARE REFORM; HEALTH POLICY; INSURANCE, LIABILITY; MALPRACTICE; MEDICARE; UNITED STATES;

EID: 3242706971     PISSN: 02782715     EISSN: None     Source Type: Journal    
DOI: 10.1377/hlthaff.23.4.10     Document Type: Review

References (39)

1. Many reports have been issued looking at malpractice insurance as a business line but with limited attention to the impact of changes in the health care system. See, for example, E. Nordman, D. Cermak, and K. McDaniel, "Medical Malpractice Insurance Report: A Study of Market Conditions and Potential Solutions to the Recent Crisis," Draft Report presented to the National Association of Insurance Commissioners' Property and Casualty (C) Committee, 5 May 2004, www.naic.org/models_papers/papers/ insurance/ med_mal_rpt_clean.pdf (10 May 2004); U.S. General Accounting Office, Medical Malpractice Insurance: Multiple Factors Have Contributed to Increased Premium Rates, Pub. no. GAO-03-702 (Washington: U.S. Government Printing Office, 2003); and Conning and Company, Medical Malpractice Insurance: A Prescription for Chaos (Hartford, Conn.: Conning and Company, 2001).
2. Many reports have been issued looking at malpractice insurance as a business line but with limited attention to the impact of changes in the health care system. See, for example, E. Nordman, D. Cermak, and K. McDaniel, "Medical Malpractice Insurance Report: A Study of Market Conditions and Potential Solutions to the Recent Crisis," Draft Report presented to the National Association of Insurance Commissioners' Property and Casualty (C) Committee, 5 May 2004, www.naic.org/models_papers/papers/ insurance/ med_mal_rpt_clean.pdf (10 May 2004); U.S. General Accounting Office, Medical Malpractice Insurance: Multiple Factors Have Contributed to Increased Premium Rates, Pub. no. GAO-03-702 (Washington: U.S. Government Printing Office, 2003); and Conning and Company, Medical Malpractice Insurance: A Prescription for Chaos (Hartford, Conn.: Conning and Company, 2001).
3. Many reports have been issued looking at malpractice insurance as a business line but with limited attention to the impact of changes in the health care system. See, for example, E. Nordman, D. Cermak, and K. McDaniel, "Medical Malpractice Insurance Report: A Study of Market Conditions and Potential Solutions to the Recent Crisis," Draft Report presented to the National Association of Insurance Commissioners' Property and Casualty (C) Committee, 5 May 2004, www.naic.org/models_papers/papers/ insurance/ med_mal_rpt_clean.pdf (10 May 2004); U.S. General Accounting Office, Medical Malpractice Insurance: Multiple Factors Have Contributed to Increased Premium Rates, Pub. no. GAO-03-702 (Washington: U.S. Government Printing Office, 2003); and Conning and Company, Medical Malpractice Insurance: A Prescription for Chaos (Hartford, Conn.: Conning and Company, 2001).
4. The last book-length analysis of medical liability insurance was rooted in the 1980s crisis. F.A. Sloan, R.R. Bovbjerg, and P.B. Githens, Insuring Medical Malpractice (New York: Oxford University Press, 1991).
5. W.M. Sage, "Reputation, Malpractice Liability, and Medical Error," in Accountability: Patient Safety and Policy Reform, ed. V.A. Sharpe (Washington: Georgetown University Press, October 2004), 159-183.
6. R.R. Bovbjerg and A. Bartow, "Understanding Pennsylvania's Medical Malpractice Crisis: Facts about Liability Insurance, the Legal System, and Health Care in Pennsylvania," Project on Medical Liability in Pennsylvania, June 2003, www.medliabilitypa.org/research/report0603 (7 April 2004).
7. Institute of Medicine, Crossing the Quality Chasm: A New Health System for the Twenty-first Century (Washington: National Academies Press, 2001).
8. C.T. Struve, "Expertise in Medical Malpractice Litigation: Special Courts, Screening Panels, and Other Options," Project on Medical Liability in Pennsylvania, October 2003, www.medliabilitypa.org/research/ struve1003 (7 April 2004).
9. F.A. Sloan, "Public Medical Malpractice Insurance," Project on Medical Liability in Pennsylvania, March 2004, www.medliabilitypa.org/research/ files/sloan0304.pdf (7 April 2004).
10. Sloan et al., Insuring Medical Malpractice, 4-5 ; and G.O. Robinson, "The Medical Malpractice Crisis of the 1970's: A Retrospective," Law and Contemporary Problems 49, no. 2 (1986): 5-35.
11. Sloan et al., Insuring Medical Malpractice, 4-5 ; and G.O. Robinson, "The Medical Malpractice Crisis of the 1970's: A Retrospective," Law and Contemporary Problems 49, no. 2 (1986): 5-35.
12. J.K. Iglehart, "The Professional Liability Crisis: The 1986 Duke Private Sector Conference," New England Journal of Medicine 315, no. 17 (1986): 1105-1108.
13. Bovbjerg and Bartow, "Understanding Pennsylvania's Medical Malpractice Crisis."
14. The shift from occurrence to claims-made policies, which earlier stabilized insurance markets, may have made things worse over time by making it easier for insurers to enter and exit markets on short notice.
15. T. Baker, "Insuring Liability Risks," Geneva Papers on Risk and Insurance 29, no. 1 (2004): 87-106.
16. W.M. Sage, "Understanding the First Malpractice Crisis of the Twenty-first Century," in 2003 Health Law Handbook, ed. A.G. Gosfield (St. Paul, Minn.: West Group, 2003), 1-32.
17. K. De Ville, "Medical Malpractice in Twentieth Century United States: The Interaction of Technology, Law, and Culture," International Journal of Technology Assessment in Health Care 14, no. 2 (1998): 197-211; and J.C. Mohr, "American Medical Malpractice Litigation in Historical Perspective," Journal of the American Medical Association 283, no. 13 (2000): 1731-1737.
18. K. De Ville, "Medical Malpractice in Twentieth Century United States: The Interaction of Technology, Law, and Culture," International Journal of Technology Assessment in Health Care 14, no. 2 (1998): 197-211; and J.C. Mohr, "American Medical Malpractice Litigation in Historical Perspective," Journal of the American Medical Association 283, no. 13 (2000): 1731-1737.
19. L.T. Kohn, J.M. Corrigan, and M.S. Donaldson, eds., To Err Is Human: Building a Safer Health System (Washington: National Academies Press, 1999); and Harvard Medical Practice Study Group, Patients, Doctors, and Lawyers: Medical Injury, Malpractice Litigation, and Patient Compensation in New York (Cambridge, Mass.: Harvard University Press, 1990).
20. L.T. Kohn, J.M. Corrigan, and M.S. Donaldson, eds., To Err Is Human: Building a Safer Health System (Washington: National Academies Press, 1999); and Harvard Medical Practice Study Group, Patients, Doctors, and Lawyers: Medical Injury, Malpractice Litigation, and Patient Compensation in New York (Cambridge, Mass.: Harvard University Press, 1990).
21. W.M. Sage, "Medical Liability and Patient Safety," Health Affairs 22, no. 4 (2003): 26-36.
22. T. Baker, "Containing the Promise of Insurance: Adverse Selection and Risk Classification," Connecticut Insurance Law Journal 9, no. 2 (2002-2003): 371-396.
23. D.M. Studdert and T.A. Brennan, "The Problem of Punitive Damages in Lawsuits against Managed-Care Organizations," New England Journal of Medicine 342, no. 4 (2000): 280-284.
24. P.M. Danzon, M.V. Pauly, and R.S. Kington, "The Effects of Malpractice Litigation on Physicians' Fees and Incomes:" AEA Papers and Proceedings 80, no. 2 (1990): 122-127.
25. W.M. Sage, "Enterprise Liability and the Emerging Managed Health Care System," Law and Contemporary Problems 60, no. 2 (1997): 159-210; W.M. Sage, K.E. Hastings, and R.A. Berenson, "Enterprise Liability for Medical Malpractice and Health Care Quality Improvement," American Journal of Law and Medicine 20, nos. 1 and 2 (1994): 1-28; and K.S. Abraham and P.C. Weiler, "Enterprise Medical Liability and the Evolution of the American Health Care System," Harvard Law Review 108, no. 2 (1994): 381-436.
26. W.M. Sage, "Enterprise Liability and the Emerging Managed Health Care System," Law and Contemporary Problems 60, no. 2 (1997): 159-210; W.M. Sage, K.E. Hastings, and R.A. Berenson, "Enterprise Liability for Medical Malpractice and Health Care Quality Improvement," American Journal of Law and Medicine 20, nos. 1 and 2 (1994): 1-28; and K.S. Abraham and P.C. Weiler, "Enterprise Medical Liability and the Evolution of the American Health Care System," Harvard Law Review 108, no. 2 (1994): 381-436.
27. W.M. Sage, "Enterprise Liability and the Emerging Managed Health Care System," Law and Contemporary Problems 60, no. 2 (1997): 159-210; W.M. Sage, K.E. Hastings, and R.A. Berenson, "Enterprise Liability for Medical Malpractice and Health Care Quality Improvement," American Journal of Law and Medicine 20, nos. 1 and 2 (1994): 1-28; and K.S. Abraham and P.C. Weiler, "Enterprise Medical Liability and the Evolution of the American Health Care System," Harvard Law Review 108, no. 2 (1994): 381-436.
28. C.C. Havighurst, Health Care Choices: Private Contracts as Instruments of Health Reform (Washington: AEI Press, 1995); and C.C. Havighurst, "Vicarious Liability: Relocating Responsibility for the Quality of Medical Care," American Journal of Law and Medicine 26, no. 1 (2000): 7-29.
29. C.C. Havighurst, Health Care Choices: Private Contracts as Instruments of Health Reform (Washington: AEI Press, 1995); and C.C. Havighurst, "Vicarious Liability: Relocating Responsibility for the Quality of Medical Care," American Journal of Law and Medicine 26, no. 1 (2000): 7-29.
30. M.M. Mello et al., "Hospitals' Behavior in a Tort Crisis: Observations from Pennsylvania," Health Affairs 22, no. 6 (2003): 225-233.
31. A.E. Hofflander, B.F. Nye, and J.D. Nettesheim, Report on the Medical Malpractice Insurance Delivery System in Pennsylvania (Philadelphia: Pennsylvania Trial Lawyers Association, 2001).
32. W.K. Viscusi, "Tort Reform and Insurance Markets," Harvard Law and Economics Discussion Paper no. 440, October 2003, papers.ssrn.com/ abstract_id=469904 (7 April 2004).
33. D.M. Studdert et al., "Can the United States Afford a 'No-Fault' System of Compensation for Medical Injury?" Law and Contemporary Problems 60, no. 2 (1997): 1-34; D.M. Studdert and T.A. Brennan, "Toward a Workable Model of 'No-Fault' Compensation for Medical Injury in the United States," American Journal of Law and Medicine 27, nos. 2 and 3 (2001): 225-252; R.R. Bovbjerg and F.A. Sloan, "No-Fault for Medical Injury: Theory and Evidence," University of Cincinnati Law Review 67, no. 1 (1998): 53-123; and F.A. Sloan, "The Road from Medical Injury to Claims Resolution: How No-Fault and Tort Differ," Law and Contemporary Problems 60, no. 2 (1997): 35-111.
34. D.M. Studdert et al., "Can the United States Afford a 'No-Fault' System of Compensation for Medical Injury?" Law and Contemporary Problems 60, no. 2 (1997): 1-34; D.M. Studdert and T.A. Brennan, "Toward a Workable Model of 'No-Fault' Compensation for Medical Injury in the United States," American Journal of Law and Medicine 27, nos. 2 and 3 (2001): 225-252; R.R. Bovbjerg and F.A. Sloan, "No-Fault for Medical Injury: Theory and Evidence," University of Cincinnati Law Review 67, no. 1 (1998): 53-123; and F.A. Sloan, "The Road from Medical Injury to Claims Resolution: How No-Fault and Tort Differ," Law and Contemporary Problems 60, no. 2 (1997): 35-111.
35. D.M. Studdert et al., "Can the United States Afford a 'No-Fault' System of Compensation for Medical Injury?" Law and Contemporary Problems 60, no. 2 (1997): 1-34; D.M. Studdert and T.A. Brennan, "Toward a Workable Model of 'No-Fault' Compensation for Medical Injury in the United States," American Journal of Law and Medicine 27, nos. 2 and 3 (2001): 225-252; R.R. Bovbjerg and F.A. Sloan, "No-Fault for Medical Injury: Theory and Evidence," University of Cincinnati Law Review 67, no. 1 (1998): 53-123; and F.A. Sloan, "The Road from Medical Injury to Claims Resolution: How No-Fault and Tort Differ," Law and Contemporary Problems 60, no. 2 (1997): 35-111.
36. D.M. Studdert et al., "Can the United States Afford a 'No-Fault' System of Compensation for Medical Injury?" Law and Contemporary Problems 60, no. 2 (1997): 1-34; D.M. Studdert and T.A. Brennan, "Toward a Workable Model of 'No-Fault' Compensation for Medical Injury in the United States," American Journal of Law and Medicine 27, nos. 2 and 3 (2001): 225-252; R.R. Bovbjerg and F.A. Sloan, "No-Fault for Medical Injury: Theory and Evidence," University of Cincinnati Law Review 67, no. 1 (1998): 53-123; and F.A. Sloan, "The Road from Medical Injury to Claims Resolution: How No-Fault and Tort Differ," Law and Contemporary Problems 60, no. 2 (1997): 35-111.
37. Federal Liability Risk Retention Act, codified at 15 U.S. Code, sees. 3901-3906.
38. J.M. Corrigan, A. Greiner, and S.M. Erickson, eds., Fostering Rapid Advances in Health Care: Learning from System Demonstrations (Washington: National Academies Press, 2002).
39. U.S. Department of Health and Human Services, Confronting the New Health Care Crisis: Improving Health Care Quality and Lowering Costs by Fixing Our Medical Liability System, 24 July 2002, aspe.hhs.gov/daltcp/reports/ litrefm.pdf (8 April 2004).