Policy experimentation with administrative compensation for medical injury: Issues under state constitutional law

Harvard Journal on Legislation

Volumn 45, Issue 1, 2008, Pages 59-106

  Mello, Michelle M ^a   Studdert, David M ^b   Moran, Patricia ^d   Dauer, Edward A ^c  

^a HARVARD SCHOOL OF PUBLIC HEALTH   (United States)

^b UNIVERSITY OF MELBOURNE   (Australia)

^c UNIVERSITY OF DENVER   (United States)

^d NONE

Author keywords

[No Author keywords available]

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EID: 41849145217     PISSN: 0017808X     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Article

References (317)

1. KENNETH A. DE VILLE, MEDICAL MALPRACTICE IN NINETEENTH CENTURY AMERICA 23 (1990).
2. David M. Studdert et al., Medical Malpractice, 350 NEW ENG. J. MED. 283, 287 (2004).
3. See id. at 284.
4. MICHELLE M. MELLO, MEDICAL MALPRACTICE: IMPACT OF THE CRISIS AND EFFECT OF STATE TORT REFORMS (ROBERT WOOD JOHNSON FOUNDATION, THE SYNTHESIS PROJECT, POLICY BRIEF NO. 10) (2006), available at http://www.rwjf.org/publications/synthesis/ reports_and_briefs/pdf/no10_policybrief.pdf.
5. See, e.g., CLARK C. HAVIGHURST, HEALTH CARE CHOICES: PRIVATE CONTRACTS AS INSTRUMENTS OF HEALTH REFORM 12 (1995);
6. Richard A. Epstein, Medical Malpractice: The Case For Contract, 76 AM. B. FOUND. RES. J. 87, 93 (1976).
7. See, e.g., Kenneth S. Abraham & Paul C. Weiler, Enterprise Medical Liability and the Evolution of the American Health Care System, 108 HARV. L. REV. 381, 398 (1994);
8. William M. Sage et al., Enterprise Liability for Medical Malpractice and Health Care Quality Improvement, 10 AM. J.L. & MED. 1 (1994).
9. See, e.g., Edward A. Dauer & Leonard J. Marcus, Adapting Mediation to Link Resolution of Medical Malpractice Disputes With Health Care Quality Improvement, 60 LAW & CONTEMP. PROBS. 185 (1997);
10. Thomas Metzloff, The Unrealized Potential of Malpractice Arbitration, 31 WAKE FOREST L. REV. 203 (1996).
11. See, e.g., Clark C. Havighurst & Laurence R. Tancredi, "Medical Adversity Insurance" - A No-Fault Approach to Medical Malpractice and Quality Assurance, 51 MILBANK Q. 125 (1973);
12. Jeffrey O'Connell, Neo-No-Fault Remedies for Medical Injuries: Coordinated Statutory and Contractual Alternatives, 49 LAW & CONTEMP. PROBS. 125, 128 (1986);
13. Jeffrey O'Connell, No-Fault Insurance for Injuries Arising from Medical Treatment: A Proposal for Elective Coverage, 24 EMORY L.J. 21 (1975);
14. David M. Studdert & Troyen A. Brennan, No-Fault Compensation: The Prospect for Error Prevention, 286 JAMA 217 (2001);
15. Paul C. Weiler, The Case For No-Fault Medical Liability, 52 MD. L. REV. 908, 920 (1993).
16. See, e.g., Studdert & Brennan, supra note 8, at 219.
17. See, e.g., Michelle M. Mello & Troyen A. Brennan, Deterrence of Medical Errors: Theory and Evidence for Malpractice Reform, 80 TEX. L. REV. 1595, 1629 (2002);
18. INSTITUTE OF MEDICINE, FOSTERING RAPID ADVANCES IN HEALTH CARE: LEARNING FROM SYSTEM DEMONSTRATIONS 84 (Janet M. Corrigan et al. eds., 2002), available at http://www.nap.edu/ catalog.php?record_id=10565#toc;
19. COMMON GOOD, WINDOWS OF OPPORTUNITY: STATE-BASED IDEAS FOR IMPROVING MEDICAL INJURY COMPENSATION AND ENHANCING PATIENT SAFETY 13 (2006), available at http://cgood.org/assets/attachments/Windows_of_opportunity_web.pdf.
20. The term "health court" was applied to the model by the nonprofit advocacy organization Common Good. See Paul J. Barringer, A New Prescription for America's Medical Liability System, 9 J. HEALTH CARE L. & POL'Y 235 (2006);
21. COMMON GOOD, FREQUENTLY ASKED QUESTIONS ABOUT HEALTH COURTS (2007), http://cgood.org/f-healthcourtsfaq.html.
22. Legislation was introduced in the 109th Congress that would have facilitated the creation of pilot projects to test the feasibility of the health court model: H.R. 1546, 109th Cong. § 1 (2005), introduced in April 2005 by Representative Mac Thornberry (R-Tex.), and S. 1337, 109th Cong. § 1 (2005), introduced in June 2005 by Senators Michael Enzi (R-Wyo.) and Max Baucus (D-Mont.). As of March 2007, introduction of similar proposals is anticipated in the 110th Congress. At the state level, bills have been introduced in Maryland, see S. 580, 423d Gen. Assemb. (Md. 2007);
23. H.B. 338, 423d Gen. Assemb. (Md. 2007);
24. and H.B. 779, 423d Gen. Assemb. (Md. 2007), Massachusetts,
25. see S. 990, 185th Gen. Court (Mass. 2007);
26. S. 686, 185th Gen. Court (Mass. 2007), and Pennsylvania,
27. see S. 678, 191st Gen. Assemb. (Pa. 2007), that would create health courts or other kinds of administrative compensation systems for medical injuries. Bills to establish health courts also have been introduced in recent years in Illinois and New Jersey.
28. See S. 671, 212th Leg. (N.J. 2006);
29. S. 151, 94th Gen. Assemb. (Ill. 2005).
30. Finally, in a number of states, including Massachusetts, Pennsylvania, Virginia, and Wyoming, legislative commissions or task forces have been directed to consider the feasibility of establishing health courts or other specialized processes for resolving medical injury disputes. E-mail communication between Michelle M. Mello and Paul Barringer, Gen. Counsel, Common Good (Mar. 27, 2007) (on file with Michelle M. Mello). For scholarly commentary on the health courts proposal, see Barringer, supra note 11 (arguing in favor of the proposal);
31. Carl W. Tobias, Health Courts: Panacea or Palliative?, 40 RICHMOND L. REV. 49, 52 (2005) (describing health courts as a "provocative, but controversial, solution");
32. and Amy Widman, Why Health Courts Are Unconstitutional, 27 PACE L. REV. 55, 81-86 (2006) (asserting that health courts would violate state and federal constitutional provisions including the rights to jury trial, due process, and equal protection).
33. INSTITUTE OF MEDICINE, supra note 10.
34. See MAXWELL J. MEHLMAN & DALE A. NANCE, MEDICAL INJUSTICE: THE CASE AGAINST HEALTH COURTS (2007) (raising a number of objections to health courts in a report commissioned by the American Association for Justice).
35. See Victor E. Schwartz et al., Tort Reform Past, Present and Future: Solving Old Problems and Dealing With "New Style" Litigation, 27 WM. MITCHELL L. REV. 237 (2000) (discussing efforts at "judicial nullification" as the trial bar's strategy in response to the defense side's legislative successes).
36. See also David M. Studdert & Troyen A. Brennan, Toward a Workable Model of "No-Fault" Compensation for Medical Injury in the United States, 27 AM. J.L. & MED. 225, 235, 241-44, 252 (2001) (discussing constitutional issues relating to an earlier proposal for administrative compensation for medical injuries).
37. The United States Supreme Court case that established this principle is Marbury v. Madison, 5 U.S. (1 Cranch) 137 (1803).
38. Compare, e.g., HAW. CONST. art. 1, § 5 ("No person shall be deprived of life, liberty or property without due process of law, nor be denied the equal protection of the laws.")
39. with U.S. CONST. amend. XIV, § 1 ("No State shall . . . deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.").
40. E. Donald Elliott et al., Administrative "Health Courts" for Medical Injury Claims: The Federal Constitutional Issues, 34 J. HEALTH POL. POL'Y & L. (forthcoming July 2009).
41. Because state legislation establishing health courts could also be challenged under provisions of the U.S. Constitution, Elliott's analysis of separation-of-powers issues and Seventh Amendment rights to jury trial, see id. (manuscript at 36-43, on file with authors), is highly relevant to evaluating the legal permissibility of such legislation.
42. Michelle M. Mello et al., "Health Courts" and Accountability for Patient Safety, 84 MILBANK Q. 459 (2006).
43. See also COMMON GOOD, supra note 10 (describing in detail the proposal that was developed by Common Good in partnership with Harvard School of Public Health faculty members).
44. For example, in the administrative compensation system in Sweden, the claimant "completes a simple form that is available in all clinics and hospitals, typically with the help of hospital personnel." Patricia M. Danzon, The Swedish Patient Compensation System: Lessons for the United States, 15 J. LEGAL MED. 199, 215 (1994).
45. The concept and development process for accelerated-compensation events (also known as "avoidable classes of events") are described in several papers by Randy Bovbjerg and Lawrence Tancredi. See Randall R. Bovbjerg & Lawrence R. Tancredi, Rethinking Responsibility for Patient Injury: Accelerated-Compensation Events, a Malpractice and Quality Reform Ripe for a Test, 54 LAW & CONTEMP. PROBS. 147 (1991);
46. Randall R. Bovbjerg & Lawrence R. Tancredi, Advancing the Epidemiology of Injury and Methods of Quality Control: ACEs as an Outcomes-Based System for Quality Improvement, 18 QUALITY REV. BULL. 201 (1992);
47. Randall R. Bovbjerg & Lawrence R. Tancredi, Liability Reform Should Make Patients Safer: Focusing on "Avoidable Classes of Events" Can Improve Patient Safety and Compensation for Medical Injury, 33 J.L. MED. & ETHICS 478 (2005);
48. Lawrence R. Tancredi, Identifying Avoidable Adverse Events in Medicine, 12 MED. CARE 935 (1974);
49. Lawrence R. Tancredi, No-Fault and Medical Malpractice: The Causation Issues of Defining Compensable Events, 14 INQUIRY 341 (1977).
50. For a summary of approaches to designing such a schedule, see DAVID M. STUDDERT & MICHELLE M. MELLO, OPTIONS FOR RATIONAL SCHEDULING AND VALUATION OF NONECONOMIC DAMAGES, REPORT TO THE WASHINGTON STATE NONECONOMIC DAMAGES TASK FORCE (2005).
51. The diversity was much larger across states than within them. The inter-state variability seemed to be more pronounced in areas where state constitutions speak and the U.S. Constitution is silent. Where the state and federal constitutional provisions are similar - as in equal protection and due process jurisprudence-state courts have tended to follow the lead of the federal courts, and their decisions are therefore more uniform. Where the provision at issue has no federal analog, state courts have taken cognizance of each other's decisions but are not compelled to follow them.
52. In some states, other constitutional provisions may provide additional avenues of legal challenge. Some states have, for example, "single subject" provisions preventing a legislature from creating "Christmas Tree" legislation-statutes that combine multiple, often unrelated provisions in a single bill-as a political strategy. See, e.g., Evans v. State, 56 P.3d 1046, 1069-70 (Alaska 2002);
53. Associated Builders & Contractors v. Ventura, 610 N.W.2d 293, 301-02 (Minn. 2000). Litigants have occasionally attacked medical malpractice reforms on such grounds, claiming that a comprehensive reform bill with numerous provisions violated the requirement that no bill address more than one subject.
54. See, e.g., Street v. City of Anniston, 381 So. 2d 26 (Ala. 1980). These and similar provisions are idiosyncratic and should be known to policy makers in the individual states. We do not address them here.
55. We address separately the issues surrounding patient consent to inclusion in a demonstration project or even a permanent system based on actual or "deemed" opting-in. See infra Part V.
56. Open-courts and right-to-remedy provisions appear in forty of the fifty state constitutions, generally in states admitted to the Union later than the original colonies. See Thomas R. Phillips, The Constitutional Right to a Remedy, 78 N.Y.U. L. REV. 1309, 1310 (2003).
57. In one state in our sample in which the constitution does not contain an equal protection clause, the state's due process clause is read as containing the equivalent of the federal equal protection provision. See, e.g., Garhart v. Columbia/HealthOne, 95 P.3d 571, 583 (Colo. 2004).
58. Carly N. Kelly & Michelle M. Mello, Are Medical Malpractice Damages Caps Constitutional? An Overview of State Litigation, 33 J.L. MED. & ETHICS 515, 522 (2005).
59. Id.
60. Id. at 522-23.
61. See Mello et al., supra note 20, at 461.
62. See generally RONEN AVRAHAM, DATABASE OF STATE TORT LAW REFORMS (2d ed. 2006), available at http://ssrn.com/abstract=942827.
63. Kelly & Mello, supra note 29, at 523-24.
64. This framework hinges on a determination of whether a suspect class or fundamental right is involved. Id. at 524.
65. See, e.g., Marco de Sa e Silva, Constitutional Challenges to Washington's Limit on Noneconomic Damages in Cases of Personal Injury and Death, 63 WASH. L. REV. 653, 670 (1988) (noting that state courts have consistently rejected substantive due process challenges to medical malpractice damages caps).
66. The last claim would be difficult to make in light of the provision that a hearing would be held at the request of either party, however.
67. See MEHLMAN & NANCE, supra note 14, at 109.
68. See, e.g., Best v. Taylor Mach. Works, 689 N.E.2d 1057, 1079 (Ill. 1997) (overturning a statute that would have interfered with courts' ability to order remittitur of a judgment, which was "a traditional and inherent power of the judicial branch of the government").
69. See, e.g., Carson Fisher Potts & Hyman v. Hyman, 559 N.W.2d 54 (Mich. App. 1996) (prohibiting the grant of fact-finding authority to a non-judge expert as an unconstitutional delegation of the judicial power).
70. Wright v. Central DuPage Hosp. Ass'n, 347 N.E.2d 746 (Ill. 1976) (invalidating a statute authorizing a non-judge to participate equally with judges on a malpractice pre-trial screening panel).
71. See Kelly & Mello, supra note 29, at 525.
72. Id.
73. But see Bernier v. Burris, 497 N.E.2d 763 (Ill. 1986) (invalidating a pretrial screening panel on separation-of-powers grounds).
74. Although no cases in our sample invalidated a statute on precisely that basis, the claim has been made and taken seriously. For example, in Kranda v. Houser-Norborg Med. Corp., 419 N.E.2d 1024, 1036 (Ind. 1981), the court upheld a pre-trial screening panel statute against such an attack, noting that, under the statute as written, although "such power clearly resides with the courts . . . [n]either the Indiana Department of Insurance nor the medical review panel makes an adjudication on the merits of a claim. Neither conducts a hearing or a trial and neither renders a decision or a judgment on the claims before it."
75. Kelly & Mello, supra note 29, at 525.
76. See Minneapolis & St. Louis R.R. Co. v. Bombolis, 241 U.S. 211, 218 (1916).
77. Colorado and Louisiana are exceptions.
78. See, e.g., ALA. CONST. art. I, § 11 ("the right of trial by jury shall remain inviolate");
79. ARIZ. CONST. art. 6, § 17 ("The right to jury trial as provided by this Constitution shall remain inviolate, but trial by jury may be waived by the parties in any civil cause.").
80. See, e.g., Adams v. Children's Mercy Hosp., 832 S.W.2d 898, 907 (Mo. 1992) (upholding a cap on noneconomic damages against a right-to-jury challenge because "the jury assessed liability and then determined damages, both economic and noneconomic. With that the jury completed its constitutional task.").
81. See, e.g., Moore v. Mobile Infirmary Ass'n, 592 So. 2d 156, 162-65 (Ala. 1992) (striking down a cap on noneconomic damages because it impinged upon determinations reserved for juries under Alabama's constitution).
82. See, e.g., State v. Mosley, 436 S.E.2d 632 (Ga. 1993).
83. Kelly & Mello, supra note 29, at 525.
84. For a compelling historical argument that the Seventh Amendment does not preclude judges or legislatures from setting parameters for or limits on noneconomic damages (an argument that would apply to state constitutional analogs to the Seventh Amendment as well), see Ronald J. Allen & Alexia Brunet, The Judicial Treatment of Non-Economic Compensatory Damages in the Nineteenth Century, 4 J. EMPIRICAL LEGAL STUD. 365 (2007)
85. and Ronald J. Allen et al., An External Perspective on the Nature of Non-Economic Compensatory Damages and Their Regulation, 56 DEPAUL L. REV. 1249 (2007).
86. David Schuman, The Right to a Remedy, 65 TEMP. L. REV. 1197, 1201 (1992).
87. MINN. CONST. art. I, § 8. While the language varies somewhat among the states, this formulation is not untypical.
88. Our sample of medical malpractice reform cases contained none in which a legislative act was held to violate a remedies clause but not an open-courts clause. For an excellent discussion of the historical background of remedies clauses, see Smothers v. Gresham Transfer, Inc., 23 P.3d 333 (Or. 2001).
89. See Kelly & Mello, supra note 29, at 518-20.
90. See id. at 519-20.
91. See id. at 519.
92. See, e.g., Kluger v. White, 281 So. 2d 1, 4 (Fla. 1973) ("[W]here a right of access to the courts for redress for a particular injury has been provided . . . the Legislature is without power to abolish such a right without providing a reasonable alternative ... unless the Legislature can show an overpowering public necessity.").
93. Exclusivity would become particularly difficult under right-to-remedy clauses if the new eligibility criteria excluded any case that the traditional tort system might have allowed. Our health courts proposal does not have this feature, however.
94. We mean this as our own observation about the process of constitutional adjudication viewed over the long term, not as an articulated juridical principle.
95. Supra note 48.
96. See, e.g., State v. Mosley, 436 S.E.2d 632 (Ga. 1993).
97. See id.
98. See, e.g., Kirkland v. Blaine County Med. Ctr., 4 P.3d 1115, 1118 (Idaho 2000). This is not the case for every kind of medical malpractice claim, however. Wrongful death actions, for example, were created in many states as legislative enactments some time after adoption of their constitutions, and as such are not as protected against legislative abrogation as other medical injury claims.
99. See, e.g., Travelers Indem. Co. v. Fuller, 892 S.W.2d 848, 850-51 (Tex. 1995).
100. See, e.g., Rybeck v. Rybeck, 358 A.2d 828, 842 (N.J. Super. Ct. Law Div. 1976) (upholding automobile no-fault law).
101. See, e.g., Meech v. Hillhaven West, Inc., 776 P.2d 488, 492 (Mont. 1989).
102. See, e.g., Judd v. Drezga, 103 P.3d 135, 139 (Utah 2004) (upholding cap on noneconomic damages in medical malpractice cases).
103. See, e.g., Kluger v. White, 281 So. 2d 1, 4 (Fla. 1973) (invalidating auto no-fault law);
104. Smith v. Dep't of Ins., 507 So. 2d 1080, 1089 (Fla. 1987) (invalidating medical malpractice damage cap).
105. See, e.g., Bushnell v. Sapp, 571 P.2d 1100, 1103-04 (Colo. 1977) (upholding an automobile no-fault law). In states that hold either that the cause of action is not within the constitutional protection in the first place or that the open-courts clause is a guardian against a politically captured judiciary, the remaining limitation is that of due process: the legislation must be a rational and non-arbitrary response to a legitimate state objective.
106. For an example of such an interpretation of the open-courts provision, see Adams v. Children's Mercy Hosp., 832 S.W.2d 898, 905-06 (Mo. 1992) (open-courts challenge to medical malpractice cap).
107. See, e.g., Sims v. U.S. Rd. & Guar. Co., 730 N.E.2d 232, 237 (Ind. Ct. App. 2000) ("The General Assembly can abrogate common law rights as remedies, as long as doing so does not interfere with constitutional rights.").
108. Samsel v. Wheeler Transp. Servs., Inc., 789 P.2d 541, 555 (Kan. 1990)
109. (citing Howard A. Learner, Note, Restrictive Medical Malpractice Compensation Schemes: A Constitutional "Quid Pro Quo" Analysis to Safeguard Individual Liberties, 18 HARV. J. ON LEGIS. 143 (1981)).
110. See, e.g., Bonin v. Vannaman, 929 P.2d 754, 768-69 (Kan. 1996) (upholding medical malpractice statute of repose on ground that "continued availability of healthcare in Kansas" was a sufficient quid pro quo);
111. Olson v. Bismarck Parks & Recreation Dist., 642 N.W.2d 864, 870 (N.D. 2002) (upholding statute providing tort immunity to landowners who allow the public to use the land for recreation, holding that the benefit is an encouragement of private landowners to allow their land to be used in that way);
112. Craftsman Builder's Supply v. Butler Mfg., 974 P.2d 1194, 1199-1200 (Utah 1999) (upholding builders' statute of repose on grounds that extended liability would ultimately increase the cost of living in the state).
113. See, e.g., Wright v. Cent. DuPage Hosp. Ass'n, 347 N.E.2d 736, 742 (Ill. 1976) (specifically denying that a social benefit - greater healthcare access from reduced medical liability insurance premiums - is a sufficient quid pro quo);
114. Lucas v. United States, 757 S.W.2d 687, 690 (Tex. 1988) (rejecting the argument "that the statue may be supported by alleged benefits to society generally").
115. See, e.g., Gentile v. Altermatt, 363 A.2d 1, 15 (Conn. 1976) (upholding automobile nofault law);
116. Estabrook v. American Hoist & Derrick, Inc., 498 A.2d 741, 750 (N.H. 1985) (invalidating statutory amendment to workers compensation system that would benefit all employer-defendants and limit recovery possibilities by employee-plaintiffs);
117. In re Knowles, 544 N.W.2d 183, 191 (S.D. 1996) (holding medical malpractice damage cap unconstitutional);
118. Lawson v. Hoke, 77 P.3d 1160 (Or. Ct. App. 2003) (upholding automobile no-fault law).
119. See Mello et al., supra note 20, at 471-87.
120. Some states, such as Wyoming, California, Ohio, and Pennsylvania, found it necessary to pass constitutional amendments to overcome the constitutional problems. See, e.g., Jackson v. Dravo Corp., 603 F.2d 156 (10th Cir. 1979);
121. Benjamin v. Ricks, 132 Cal. Rptr. 758 (Cal. Ct. App. 1976).
122. See, e.g., Sims v. U.S. Fid. & Guar. Co., 782 N.E.2d 345, 352 (Ind. 2003).
123. The United States Supreme Court in New York Cent. R.R. Co. v. White, 243 U.S. 188, 201-02 (1917) - the case first suggesting, though not requiring, the quid pro quo criterion-described the bargain as follows: If the employee is no longer able to recover as much as before ... he is entitled to moderate compensation in all cases of injury, and has a certain and speedy remedy without the difficulty and expense of establishing negligence or proving the amount of the damages. ... On the other hand, if the employer is left without defense respecting the question of fault, he at the same time is assured that the recovery is limited, and that it goes directly to the relief of the designated beneficiary. . . . The act evidently is intended as a just settlement of a difficult problem, affecting one of the most important of social relations, and it is to be judged in its entirety.
124. Price v. Fishback & Shawn Everett Kantor, The Adoption of Workers' Compensation in the United States, 1900-1930, 41 J.L. & ECON. 305, 313-14 (1998).
125. For example, Wyoming amended its original act to redefine compensable mental injuries to include only those that result from a compensable physical injury. 1994 Wyo. Sess. Laws Ch. 86 (codified as amended at WYO STAT. ANN. § 27-14-102(a)(xi)(J) (2005).
126. The economic exigencies leading to these and other states' amendments are discussed by the court in In re Merta Franz, 932 P.2d 750 (Wyo. 1997).
127. See, e.g., Thone v. Liberty Mut. Ins. Co., 549 A.2d 778, 780-81 (N.H. 1988) (upholding amendments);
128. Young v. Prevue Prods., Inc., 534 A.2d 714, 717 (N.H. 1987) (same).
129. But see Grantham v. Denke, 359 So. 2d 785 (Ala. 1978) (holding invalid an amendment to Alabama's optional workers' compensation system that eliminated tort actions against a co-employee on the ground that the original bargain was to promote workplace safety, which the amendment at issue would not do). It should be noted, however, that Alabama's workers' compensation system is technically optional, and is seen as a trade between employer and employee.
130. See also Easton W. Orr, Jr., Note, The Bargain Is No Longer Equal: State Legislative Efforts to Reduce Workers ' Compensation Costs Have Impermissibly Shifted the Balance of the Quid Pro Quo in Favor of Employers, 37 GA. L. REV. 325 (2002) (analyzing decisions holding that the correct analysis is to assess the statute as amended).
131. For example, see Pennsylvania No-Fault Motor Vehicle Insurance Act, PA. STAT. ANN. tit. 40, § 1009.101 et seq. (1974) (repealed 1984) and the Pennsylvania Supreme Court's analysis in Singer v. Sheppard, 346 A.2d 897 (Pa. 1975). Like other such statutes, the Pennsylvania statute barred low-level automobile accident damage claims from the tort system in exchange for providing mandatory first-party no-fault recovery.
132. For a review of state statutes and the financial problems they were designed to address, see INSURANCE INSTITUTE, NO-FAULT AUTO INSURANCE, http://www.iii.org/media/hottopics/insurance/nofault.I/ (last visited Nov. 10, 2007).
133. See supra note 82 and accompanying text.
134. See, e.g., Samsel v. Wheeler Transp. Servs., 789 P.2d 541 (Kan. 1990).
135. Singer v. Sheppard, 346 A.2d 897, 904 (Pa. 1975);
136. see also Bonin v. Vannaman, 929 P.2d 754, 769 (Kan. 1996)
137. (quoting Aves ex rel. Aves v. Shah, 258 Kan. 506, 522-23 (1995)) (noting that the quid pro quo for automobile no-fault was "prompt efficient payment" and for workers' compensation was a reduced burden of proof for recovery);
138. Lasky v. State Farm Ins. Co., 296 So. 2d 9, 14 (Fla. 1974);
139. Pinnick v. Cleary, 271 N.E.2d 592, 598 (Mass. 1971).
140. Samsel, 789 P.2d at 557-58.
141. This feature was explicitly noted by some courts. See, e.g., Lawson v. Hoke, 77 P.3d 1160, 1164-66 (Or. Ct. App. 2003).
142. Lemuz ex rel. Lemuz v. Fieser, 933 P.2d 134 (Kan. 1997).
143. Id. at 959.
144. See Lemuz, supra note 89, at 148-49 (finding an adequate quid pro quo in the reduction of medical errors and the favorable effect it would have on healthcare costs).
145. Butler v. Flint Goodrich Hosp., 607 So. 2d 517, 519 (La. 1992).
146. Id. at 521.
147. Id.
148. See David A. Anderson, First Amendment Limitations in Tort Law, 69 BROOK L. REV. 744, 793 (2004) (noting that "almost all" states guarantee a right to jury trial in civil cases).
149. University of Miami v. Echarte, 618 So. 2d 189 (Fla. 1993). The entire legislative scheme and the court's reasoning were more complex than is conveyed in this brief summary.
150. Id. at 195-98.
151. Id.
152. Id. at 196-98.
153. Id.,
154. described in Kelly & Mello, supra note 29, at 520.
155. In 2000, the Florida Supreme Court invalidated a portion of Florida's no-fault automobile law because it required medical providers to arbitrate claims assigned to them by patients against personal injury protection insurers. Nationwide Mut. Fire Ins. Co. v. Pinnacle Med., Inc., 753 So. 2d 55 (Fla. 2000). Arbitration, the court held, denies providers their right to trial and limits the right of appeal without providing adequate offsetting benefit. This suggests that it may have been the societal benefit in the damages caps case that tipped the scales in favor of finding an adequate quid pro quo.
156. One source of variability is heterogeneity in constitutional texts. See, e.g., Phillips, supra note 27 (noting that forty states have right-to-remedy clauses in their constitutions, appearing in thirty-two different formulations and referred to by eight different names). Additionally, studies reported in the political science literature have identified exogenous variables affecting judicial behavior in constitutional cases. One study, for example, found that judges whose appointments are made through a nominating and merit system are less likely to invalidate legislative acts than are those in states with appointments processes that are more overtly political.
157. James Wenzel et al., Legislating From the State Bench: A Comparative Analysis of Judicial Activism, 25 AM. POL. Q. 363 (1997) (concluding that "politicization enhances the propensity of courts to behave in activist fashion" and that "the most activist courts [those most likely to overturn legislation] are in states where justices reach office through districtbased [rather than statewide] electoral systems").
158. See also Craig Emmert, An Integrated Case-Related Model of Judicial Decision-Making: Explaining State Supreme Court Decisions in Judicial Review Cases, 54 J. POL. 543 (1992) (multivariate analysis of all decisions challenging the constitutional validity of state statutes between 1981 and 1985). Thus, political factors may also account in part for variability in judicial decision-making.
159. See Richard S. Kuhl, Comment, A Proposal to Cap Tort Liability: Avoiding the Pitfalls of Heightened Rationality, 20 U. MICH. J.L. REFORM 1215, 1225 & n.54 (1986-1987).
160. See Richard C. Turkington, Constitutional Limitations on Tort Reform: Have the State Courts Placed Insurmountable Obstacles in the Path of Legislative Responses to the Perceived Liability Insurance Crisis?, 32 VILL. L. REV. 1299, 1317 n.52 (1987).
161. See Martin H. Redish, Legislative Response to the Malpractice Insurance Crisis: Constitutional Implications, 55 TEX. L. REV. 759 (1977).
162. See Turkington, supra note 104, at 1317 nn.52-53.
163. See id.;
164. Gary D. Jensen, Legislative Larceny: The Legislature Acts Unconstitutionally When It Arbitrarily Abolishes or Limits Common Law Redress for Injury, 31 S.D. L. REV. 82 (1985-1986);
165. Larry S. Milner, The Constitutionality of Medical Malpractice Legislative Reform: A National Survey, 18 LOY. U. CHI. L.J. 1053 (1986-1987);
166. David Randolph Smith, Battling a Receding Tort Frontier: Constitutional Attacks on Medical Malpractice Laws, 38 OKLA. L. REV. 195 (1985);
167. Ronald E. Wagner & Jesse M. Reiter, Damage Caps in Medical Malpractice: Standards of Constitutional Review, 1987 DETROIT C.L. REV. 1005 (1987). However, most of the literature from this era again consisted of somewhat superficial student papers.
168. See, e.g., Kuhl, supra note 103;
169. Wesley Leonard & Marcia Blase Stevens, Comment, Legislative Limitations on Medical Malpractice Damages: The Chances of Survival, 37 MERCER L. REV. 1583 (1985-1986);
170. Mary Ann Willis, Comment, Limitation on Recovery of Damages in Medical Malpractice Cases: A Violation of Equal Protection, 54 U. CIN. L. REV. 1329 (1986).
171. See, e.g., Kuhl, supra note 103.
172. See id. at 1229-30;
173. Wagner & Reiter, supra note 107, at 1009-11.
174. See Kuhl, supra note 103, at 1232.
175. See Turkington, supra note 104, at 1332; Wagner & Reiter, supra note 107, at 1018.
176. See Wagner & Reiter, supra note 107, at 1015-16.
177. See Redish, supra note 105, at 763.
178. See Smith, supra note 107, at 229;
179. Turkington, supra note 104, at 1317 & n.52.
180. See Turkington, supra note 104, at 1328-29.
181. Federal constitutional claims were another matter; few had succeeded. See id. at 1304 n.13, 1311.
182. See, e.g., Kelly & Mello, supra note 29;
183. Robert S. Peck, Violating the Inviolate: Caps on Damages and the Right to Trial by Jury, 31 U. DAYTON L. REV. 307 (2006);
184. Robert S. Peck & Ned Miltenberg, Challenging the Constitutionality of Tort "Reform," in 3 ATLA'S LITIGATING TORT CASES § 29:11 (2006);
185. Phillips, supra note 27;
186. Schwartz et al., supra note 15;
187. Victor E. Schwartz & Leah Lorber, Judicial Nullification of Civil Justice Reform Violates the Fundamental Federal Constitutional Principle of Separation of Powers: How to Restore the Right Balance, 32 RUTGERS L.J. 907 (2001);
188. Studdert & Brennan, supra note 15;
189. Robert F. Williams, Foreword, Tort Reform and State Constitutional Law, 32 RUTGERS L.J. 897 (2001).
190. See also John CP. Goldberg, The Constitutional Status of Tort Law: Due Process and the Right to a Law for the Redress of Wrongs, 115 YALE L.J. 524 (2005) (evaluating the right to a means of legal redress for private wrongs and proposing an analytical framework for due process challenges to tort reform legislation);
191. Schuman, supra note 53 (reviewing cases on the right to a common law tort remedy and highlighting the primacy of the quid pro quo requirement);
192. John Fabian Witt, The Long History of State Constitutions and American Tort Law, 36 RUTGERS L.J. 1159 (2004-2005) (reviewing the history of constitutional challenges to tort reforms).
193. Schwartz & Lorber, supra note 116, at 952-76;
194. see also Goldberg, supra note 116, at 527 (tallying Schwartz & Lorber's findings).
195. Kelly & Mello, supra note 29.
196. Id. at 518.
197. The decisions handed down since the Kelly & Mello review concluded
198. Ferdon ex rel. Petrucelli v. Wis. Patients Comp. Fund, 701 N.W.2d 440 (Wis. 2005) (holding that Wisconsin's noneconomic damages caps violated equal protection);
199. Hughes v. PeaceHealth, 131 P.3d 798 (Or. Ct. App. 2006) (upholding Oregon's $500,000 noneconomic damages cap for wrongful death cases against right-to-remedy and jury-trial challenges);
200. and Clarke ex rel. Clarke v. Or. Health Sci. Univ., 138 P.3d 900 (Or. Ct. App. 2006) (finding that the $200,000 damages cap of the Oregon Tort Claims Act was an adequate remedy, given the state's sovereign immunity, and did not violate the right to jury trial).
201. Adapted from Kelly & Mello, supra note 29, at 519. We have added the aforementioned decisions issued after the Kelly & Mello review concluded.
202. We acknowledge that there may be distinct political forces and doctrinal issues in play in these cases that are not equally present in medical malpractice cases.
203. The states are AK, AR, AL, AZ, CA, CO, CT, DE, FL, IA, IL, IN, MD, MI, MT, MN, NC, NH, NJ, NY, OH, OR, PA, TN, TX, UT, VA, WA, WI, and WV.
204. Table 3 counts numbers of reforms challenged in the sample of cases, omitting a handful of idiosyncratic reforms that were challenged in only one case. Additionally, the denominator (indicated in the "Considered") column may be biased upwards or downwards by the fact that some courts, having found a statute invalid under one constitutional provision, found it unnecessary to consider other challenges; other courts decided everything before them. In addition, many of the statutes being challenged were parts of more comprehensive reform packages. Upon finding one part of a package unconstitutional, in some cases courts severed the offending part and upheld the rest; in other cases the one part may have been held not severable, thus invalidating other aspects of the enactment.
205. The denominator here is the number of distinct constitutional claims decided within the 132 cases examined.
206. The denominator in the table represents the total number of cases in which each type of challenge was brought.
207. Young v. Haines, 718 P.2d 909 (Cal. 1986).
208. Id.
209. Carter v. Sparkman, 335 So. 2d 802 (Fla. 1976).
210. Id.
211. See 16B C.J.S. Constitutional Law §§ 1117, 1118 (2007).
212. Id. at §1118 (listing the right to vote, the right to travel, the right to marry, privacy, procreation, certain aspects of criminal processes, First Amendment rights, and freedom of association as the widely recognized fundamental rights).
213. For example, a North Carolina appellate court applied strict scrutiny to a statute that imposed expert pretrial certification on malpractice claims but not other personal injury claims, because it found that the statute implicated a fundamental right. Anderson v. Assimos, 553 S.E.2d 63, 68-69 (N.C Ct. App. 2002) (striking the statute down because it was not the least restrictive method for addressing the asserted state interest in reducing frivolous lawsuits).
214. This finding emerged from the Kelly & Mello review of damages caps cases. See Kelly & Mello, supra note 29, at 522-23.
215. Johnson v. St. Vincent Hosp., 404 N.E.2d 585, 604 (Ind. 1980).
216. Armstrong v. Roger's Outdoor Sports, Inc., 581 So. 2d 414, 418 (Ala. 1991); .
217. see also Clark v. Container Corp. of Am., Inc., 589 So. 2d 184 (Ala. 1991) (invalidating a statute requiring the court to reduce some portions of a jury award of future damages to their present value before entering judgment on the basis that the statute violated the right to trial by jury by abrogating the jury's historical fact-finding function).
218. For example, an Arizona statute that prohibited plaintiffs from introducing evidence that would show a financial relationship between a defendant's expert witness and an implicated malpractice insurer was invalidated because the court could not "allow a legislature to define what [evidence] is relevant" in court. Barsema v. Susong, 751 P.2d 969, 974 (Ariz. 1988).
219. Another example is Ohio Acad, of Trial Lawyers v. Sheward, 715 N.E.2d 1062 (Ohio 1999), in which the Ohio Supreme Court struck down a comprehensive tort reform statute that would have amended over 100 separate provisions of Ohio law, including such judicial prerogatives as the assessment of evidence and the standards for judgments. An obviously incensed court opined that the wars of tort reform had been waged with respect for the principles of separation of powers, "that is, until now."
220. Id. at 1073. The Ohio Supreme Court also struck down a periodic payment statute, holding that the determination of damages is a function of the jury. The opinion distinguished and upheld a part of the act that prescribed prejudgment interest on the basis that while a jury is to determine damages, prejudgment interest is not a question of "fact" and therefore not part of the jury's domain.
221. Galayda v. Lake Hosp. Sys., Inc., 644 N.E.2d 298 (Ohio 1994).
222. For instance, the Illinois Supreme Court upheld every part of an omnibus medical liability reform act except one - a pretrial screening process in which judges sat with non-judges and shared authority to make nonbinding factual findings. Under separation of powers principles, the court held that the legislature lacked the ability to affect judicial authority to render decisions. Bernier v. Burris, 497 N.E.2d 763 (Ill. 1986).
223. See also Wright v. Central DuPage Hosp. Ass'n, 347 N.E.2d 736, 739-40 (Ill. 1976). Along the same lines, a North Carolina statue requiring a malpractice plaintiff to obtain pretrial expert certification that medical care was substandard was struck down because, inter alia, the requirement allowed a non-judge to determine whether a case could go forward.
224. Anderson, 553 S.E.2d at 68 ("It is for the courts ... to adjudicate ... the merits of an injured party's claim.").
225. See COMMON GOOD, supra note 10, at 15.
226. David M. Studdert et al., The Jury Is Still In: Florida's Birth-Related Neurological Injury Compensation Plan after a Decade, 25 J. HEALTH POL. POL'Y & L. 499 (2000) (showing the lively persistence of expensive claims over severe neurological injury to infants in the tort system following enactment of Florida's tort replacement scheme).
227. These states are AL, AK, AR, CA, CO, GA, IL, KS, LA, MT, NE, NM, OH, SC, SD, TX, UT, VA, and VT.
228. ARK. CODE ANN. § 16-108-201(b)(2) (2006);
229. KAN. STAT. ANN. § 5-401(c)(3) (2006);
230. MONT. CODE ANN. § 27-5-114(2)(a) (2007);
231. NEB. REV. STAT. ANN. § 25-2602.01(f)(1) (1995);
232. N.M. STAT. ANN. § 44-7A-5 (1999).
233. ALA. CODE § 6-5-485 (2006);
234. ALASKA STAT. § 09.55.535(a) and (c) (2006);
235. CAL. CODE CIV. PROC. § 1295 (2007)(validating agreements but with special requisites of form);
236. COLO. REV. STAT. § 13-64-403(1) and (3) (2006);
237. GA. CODE ANN. § 9-9-62 (2005);
238. § 710 ILL. COMP. STAT. 15/9(c) (2005);
239. LA. REV. STAT. ANN. § 9:4235 (2006);
240. OHIO REV. CODE ANN. § 2711.24 (2006);
241. S.C. CODE ANN. § 15-48-10(3) (2005);
242. S.D. CODIFIED LAWS § 21-25B-1 (2005);
243. TEX. CIV. PRAC. & REM. CODE ANN. § 74.451 (2005) (requiring signature of the patient's attorney as a condition of validity);
244. UTAH CODE ANN. § 78-14-17 (2004);
245. VT. STAT. ANN. tit. 12, § 7002 (2006);
246. VA. CODE ANN. § 8.01-581.12 (2005).
247. See, e.g., COLO. REV. STAT. § 13-64-403(3) (2006) ("The patient has the right to seek legal counsel concerning this agreement, and has the right to rescind this agreement by written notice to the physician within ninety days after the agreement has been signed and executed by both parties unless said agreement was signed in contemplation of the patient being hospitalized, in which case the agreement may be rescinded by written notice to the physician within ninety days after release or discharge from the hospital or other health care institution.");
248. COLO. REV. STAT. § 13-64-403(7) (2006) ("No health care provider shall refuse to provide medical care services to any patient solely because such patient refused to sign such an agreement or exercised the ninety-day right of rescission.").
249. Compare In re Nexion Health at Humble, Inc., 173 S.W.3d 67 (Tex. 2005) (holding that the Texas Arbitration Act's limitation - that the arbitration agreement must be signed by a consumer's attorney - is preempted by the Federal Arbitration Act)
250. with Allen v. Pacheko, 71 P.3d 375 (Colo. 2003) (holding that the McCarran-Ferguson Act exempted the state health care arbitration act from federal preemption). In the only federal decision we found, the District Court for the Southern District of Georgia came down on the Nexion side, holding that the Federal Arbitration Act preempted a state medical arbitration statute, without discussing the McCarran Ferguson argument in Allen.
251. Washburn v. Beverly Enterprises-Georgia, Inc., No. CV 106-51, 2006 U.S. Dist. LEXIS 73267, at *6 (S.D. Ga. Aug. 3, 2006).
252. See American Arbitration Ass'n, RUAA and UMA Legislation from Coast to Coast (Aug. 31, 2005), available at http://www.adr.org/sp.asp? id=26600 ("The original Uniform Arbitration Act, adopted in 1955, provided the basic framework for arbitration law in 49 jurisdictions.").
253. See Baravati v. Josephthal, Lyon & Rose, Inc., 28 F.3d 704, 709 (7th Cir. 1994) ("[I]ndeed, short of authorizing trial by battle or ordeal or, more doubtfully, by a panel of three monkeys, parties can stipulate to whatever procedures they want to govern the arbitration of their disputes; parties are as free to specify idiosyncratic terms of arbitration as they are to specify any other terms in their contract.").
254. Stephen J. Ware, Arbitration Clauses, Jury-Waiver Clauses, and Other Contractual Waivers of Constitutional Rights, 67 LAW & CONTEMP. PROBS. 167 (2004).
255. See Lowe Enter. Residential Partners, L.P. v. Jones, 40 P.3d 405 (Nev. 2002) (reviewing opinions from other jurisdictions);
256. Jay M. Zitter, Annotation, Contractual Jury Trial Waivers in State Civil Cases, 42 A.L.R. 5TH 53 (1996) (exhaustively collecting and analyzing state and federal cases and concluding that while "the vast majority of courts have held, at least in the abstract, that... a jury trial waiver clause . . . will be enforced as not being unreasonable .... [S]uch view is qualified by the additional statement in many cases that since the right to a jury trial is highly favored, independent contractual waivers of jury trials, entered into independent of specific litigation, will be strictly construed and will not be lightly inferred or extended .... [In addition,] a few courts have ruled that jury trial waiver clauses are or may be invalid in general.").
257. See Michael LeRoy, Jury Revival or Jury Reviled? When Employees are Compelled to Waive Jury Trials, 7 U. PA. J. LAB. & EMP. L. 767 (2005).
258. See, e.g., Grafton Partners L.P. v. PriceWaterhouseCoopers, 116 P.3d 479 (Cal. 2005) (holding that methods for waivers listed in statute are exclusive);
259. but see Bank South, N.A. v. Howard, 444 S.E.2d 799 (Ga. 1994) (holding that waiver in a bank loan guarantee violated the guarantor's constitutional rights).
260. See infra notes 153-57.
261. L & R Realty v. Connecticut Nat'l Bank, 715 A.2d 748, 755 (Conn. 1998).
262. Norton v. Commercial Credit Corp., No. CV9805784415, 1998 Conn. Super. LEXIS 2833, at * 14-15 (Conn. Super. Ct. Oct. 6, 1998).
263. Pancakes of Hawaii, Inc. v. Pomare Properties, 944 P.2d 97, 106 (Haw. 1997).
264. Carter v. Virginia, 345 S.E.2d 5, 9-10 (Va. Ct. App. 1986).
265. See also LeRoy, supra note 150, at 786.
266. Malan Realty Investors v. Harris, 953 S.W.2d 624 (Mo. 1997);
267. Fairfield Leasing Corp. v. Techni-Graphics, Inc., 607 A.2d 703 (N.J. Super. Ct. Law Div. 1992).
268. See, e.g., Chase Commercial Corp. v. Owen, 588 N.E.2d 705, 709 (Mass. 1992).
269. See also Zitter, supra note 149.
270. See, e.g., Quiles v. Financial Exch. Co., 879 A.2d 281 (Pa. Super. Ct. 2005) (finding that provisions in an employee handbook that were not brought to employees' attention and were not conspicuous were inadequate).
271. Deemed consent raises its own set of questions in cases where a sophisticated agent binds a group of unsophisticated individuals to a particular agreement unless they opt out-for example, when an employer bargaining with health insurance providers contracts on behalf of its employees. Outside of the arbitration and unionized labor contexts, the case law on this issue is sparse.
272. Interestingly, an advantage to characterizing a consensual model as an arbitration is that judicial hostility toward jury trial waivers generally does not apply to arbitration agreements, which are essentially waivers of jury trials. The explanation may be that arbitration is statutory, though the statutes do not provide much by way of consumer protection. This anomaly has provoked scholarly debate in the field of waiver. See Ware, supra note 148.
273. See also Brian D. Weber, Contractual Waivers of a Right to Jury Trial - Another Option, 53 CLEV. ST. L. REV. 717 (2006) (discussing jury trial waivers and arbitration in the employment context).
274. See, e.g., Doctors' Assoc, v. Casarotto, 517 U.S. 681, 687 (1996) ("Generally applicable contract defenses, such as fraud, duress, or unconscionability, may be applied to invalidate arbitration agreements without contravening section 2 [of the FAA].").
275. RESTATEMENT (SECOND) OF CONTRACTS § 208 cmt. D (1981) ("Gross inequality of bargaining power, together with terms unreasonably favorable to the stronger party, may confirm indications that the transaction involved elements of deception or compulsion, or may show that the weaker party had no meaningful choice, no real alternative, or did not in fact assent or appear to assent to the unfair terms.").
276. See Edward Dauer, Judicial Policing of Consumer Arbitration, 1 PEPPERDINE DISP. RESOL. L.J. 91, 98 (2000) (citing Hooters of Am., Inc. v. Phillips, 173 F.3d 933, 938-39 (4th Cir. 1999);
277. Randolph v. Greentree Fin. Corp., 178 F.3d 1149 (11th Cir. 1999);
278. Duffield v. Robertson-Stephens & Co., 144 F.3d 1182 (9th Cir. 1997);
279. Broemmer v. Abortion Servs. of Phoenix, 840 P.2d 1013 (Ariz. 1992);
280. and Patterson v. ITT Corp., 18 Cal. Rptr. 2d 563 (Cal. Ct. App. 1993)).
281. See generally Gilmer v. Interstate Johnson Lane Corp., 500 U.S. 20 (1991) (upholding an arbitration agreement in light of the FAA's "liberal federal policy favoring arbitration agreements").
282. For example, in Broemmer, the Arizona Supreme Court, in invalidating an agreement to arbitrate a malpractice claim, stressed the "realities present in this case" as the basis for its finding of unconscionability. 840 P.2d at 1018.
283. Their discretion is circumscribed by antidiscrimination laws and by the terms of their contracts with health insurers. Recent reports indicate that some physicians in "malpractice crisis" areas have attempted to require patients to sign a waiver of their right to sue for negligence as a condition of care. Jane Spencer, Signing Away Your Right to Sue, WALL ST. J., Oct. 1, 2003, at Dl. Such agreements, in addition to violating the terms of insurance contracts, have been held to be unenforceable because of the necessity of medical care.
284. See Allen Kachalia et al., Physician Responses to the Malpractice Crisis: From Defense to Offense, 33 J.L. MED. & ETHICS 417, 422-23 (2005). Health courts do not involve a waiver of the right to legal redress, only an agreement to engage in an alternative process.
285. Ferguson v. City of Charleston, 308 F.3d 380 (4th Cir. 2002).
286. See Zitter, supra note 149, at § 8[a].
287. A court might, for example, find a due process violation if the terms of the safe harbor infringed on fundamental fairness guarantees. Right-to-jury-trial and open-courts issues, however, would likely be muted, as the agreement would thereby be deemed a valid contractual waiver of the right to jury trial. Constitutional aspects of other kinds of deemed consent statutes are discussed in Gary L. Boland, The Doctrines of Lack of Consent and Lack of Informed Consent in Medical Procedures in Louisiana, 45 LA. L. REV. 1 (1984);
288. Charity Scott, Why Law Pervades Medicine: An Essay on Ethics in Health Care, 14 N.D. J.L. ETHICS & PUB. POL'Y 245, 273 (2000) (discussing presumptive validity of medical informed consent);
289. Joseph F. Stanton, SJC Steers Off Course: DUI Breath Test Refusals Inadmissible, 28 NEW ENG. L. REV. 1169 (1994) (discussing deemed consent to breath analyzer testing);
290. and Tina L. Wilson, Please Leave Your Constitutional Protections at the Door: A Challenge to Louisiana's Mandatory Drug Testing Statutes, 60 LA. L. REV. 585 (2000) (discussing deemed consent to drug testing in schools by athletes).
291. COLO. REV. STAT. § 13-64-403 (2007).
292. CAL. CIV. PROC. CODE § 1295 (Deering 2007).
293. OHIO REV. CODE ANN. §2711.24 (West 2007).
294. See supra note 22.
295. Although we do not describe these effects herein, they are comprehensively examined in Mello, supra note 4.
296. See supra note 2 and accompanying text.
297. Patricia M. Danzon, Liability for Medical Malpractice, in HANDBOOK OF HEALTH ECONOMICS 1339, (Anthony J. Culyer & Joseph P. Newhouse eds., 2000).
298. David M. Studdert et al., Claims, Errors, and Compensation Payments in Medical Malpractice Litigation, 254 NEW ENG. J. MED. 2024 (2006).
299. Mello & Brennan, supra note 10.
300. A. Russell Localio et al., Relation Between Malpractice Claims and Adverse Events Due to Negligence: Results of the Harvard Medical Practice Study III, 325 NEW ENG. J. MED. 245 (1991) (finding that only about two percent of New York patients injured by negligence filed a malpractice claim);
301. David M. Studdert et al., Negligent Care and Malpractice Claiming Behavior in Utah and Colorado, 38 MED. CARE 250 (2000) (replicating this finding for patients in Utah and Colorado).
302. Mello et al., supra note 20.
303. Again, though we do not rehearse these arguments here, extensive discussion can be found in Mello et al., supra note 20;
304. Studdert & Brennan, supra note 8;
305. and Mello & Brennan, supra note 10.
306. Mello et al., supra note 20, at 467
307. (citing Eric J. Thomas et al., Incidence and Types of Adverse Events and Negligent Care in Utah and Colorado, 38 MED. CARE 261 (2006)).
308. See also Allen B. Kachalia et al., Beyond Negligence: Avoidability and Medical Injury Compensation, 65 SOC SCI. MED. (forthcoming 2007) (describing the two standards in detail and listing examples of injuries that would be compensable under an avoidability standard but not in tort).
309. Consider, for example, a medical injury that, unfortunately, is not uncommon: a woman undergoing a hysterectomy experiences ligation of her urethra, resulting in a prolonged hospital stay, pain, additional surgery, and several months away from work. Ordinarily, this injury is unlikely to be compensable under a negligence standard. Under an avoidability standard, on the other hand, it would be. In an optimal system of care, this injury should never occur.
310. See Mello et al., supra note 20, at 474.
311. Using private adjudication in a private process would make the adjudication look much more like an arbitration than it would if the adjudicators were state-appointed agents acting under a state judicial or administrative warrant. Arbitration agreements are subject to invalidation on unconscionability grounds.
312. It is not uncommon to find in workers' compensation cases a holding describing the right in question as a new right (any former analogous rights having been abolished), allowing the legislature to condition the new rights without access-to-courts or jury-trial requirements. See, e.g., Goodrum v. Asplundh Tree Expert Co., 824 S.W.2d 6 (Mo. 1992);
313. Nev. Indus. Comm'n v. Reese, 560 P.2d 1352 (Nev. 1977);
314. McKay v. N.H. Comp. Appeals Bd., 732 A.2d 1025 (N.H. 1999);
315. and Kline v. Arden H. Verner Co., 469 A.2d 158 (Pa. 1983).
316. See Studdert et al., supra note 2, at 285-86.
317. Mello & Brennan, supra note 10, at 1607-15.