Recent Developments in Law and Policy
Capping the Crisis: Medical Malpractice and Tort Reform
Introduction President Bush has proposed medical malpractice tort reform as part of his reelection campaign. “The Health Care Liability Reform and Quality of Care Improvement Act of 1991”was introduced in the Senate last year as well: This bill provides economic incentives for states to enact tort reforms such as restricting non-economic damages and allowing collateral source benefitsz to be deducted from prevailing plaintiffs’ awards. Echoing the tortreform theme, Vice-president Dan Quayle recently pledged Republican support in resolving the current crisis in medical liability during his August I 8th acceptance speech at the Republican National Convention. President Bush, Vice President Quayle and Congress are reacting to what has been termed the malpractice “crisis,” a phenomenon which has been observed since the 1970s. Physicians and attorneys have long been at odds over medical malpractice. Many physicians blame attorneys and insurance companies for rising malpractice insurance premiums, billions spent on “defensive medicine,”3 and the erosion of the doctor-patient relationship.
The legal profession has countered that the increasing size and frequency of damage awards represents only a more active plaintiff bar redressing increasingly frequent iatrogenic injuries.4 The tension of these opposing forces has led one judge to compare his role as an arbiter to that of “a noncombatant in ancient Rome about to attempt a crossing of the arena in the coliseum."^ These same tensions have led many state legislatures to cast the broad net of “tort reform,” whose most controversial tenet is the imposition of limits, or caps, on the amount that a patient injured through medical malpractice may collect.
Innovations within the tort framework The traditional goals of the tort system are twofold: compensation and deterrence. For a plaintiff to succeed in professional liability cases, courts require a finding of “fault”-negligent behavior and causation of injury. In medical malpractice suits, a patient must show that she was injured in the course of medical treatment, that the doctor’s treatment caused the injury,
and that the doctor failed to follow the proper standard of care. The everpresent threat of a lawsuit ostensibly insures that doctors do not provide substandard care. Whether fault-based liability in the framework of an adversarial system actually achieves these goals, thereby insuring quality health care, is widely debated.h But the desire to stay within the boundaries of the traditional tort system is compelling. Therefore, the bulk of current innovations encompassed in “tort reform” aim to address the health care “crisis’’’ while retaining fundamental tort doctrines. Policies aimed at reforming the tort system seek to reduce the frequency of litigation and to iimit the size of claims awarded. Legislature9 can devise barriers to the courtroom through mandatory pretrial screening panels or shortened statutes of limitation, thereby discouraging excessive litigation. Alternatively, legislation may restrict recoverable damages by modifying the collateral source rule, which precludes a defendant from deducting a plaintiff‘s insurance or other assets from the jury award, or by imposing a cap on pain and
Law, Medicine & Heulth Care suffering or economic damages. As of 1988, damage limitation provisions had been incorporated into the medical malpractice statutes of at least 14states, with courts divided on the constitutionality of the various state capsR
Judicial responses to constitutional challenges Statutes tinkering with a plaintiff‘s right to redress are subject to a variety of constitutional challenges, both state and federal. Both the Seventh and Fourteenth Amendments to the United States Constitution serve as grounds for challenging damage-limiting statutes, as do similar provisions of the various state constitutions. While federal courts have thus far taken a “hands-off’’ attitude towards legislative tort reform,y several state courts have struck down their statutes on the basis of state constitutional violations. The Seventh Amendment guarantees all citizens the right to a jury trial in cases heard by a federal court and largely prohibits judicial review of jury fact-finding.’” Statutory damage caps restrict a jury’s freedom to determine damages, leading to the charge that they interfere with the jury’s fact-finding role. In Davis v. Omitowoju,“ the Third Circuit rejected the contention that by reducing the jury’s award to the statutory limit of $250,000, the trial judge inappropriately reexamined the jury’s finding of fact. Rather, according to the court, the judge was merely implementing a governmental policy decision clearly within the scope of the legislature’s authority.Iz State courts, however, have not been monolithic in their approach to the implications of damage caps on the right to jury trial provided by their state constitutions. The Supreme Court of Virginia, in Etheridge v. Medical Center Hospitals,‘3 upheld a $750,000cap on general damages on the basis of two lines of reasoning. First, a limitation on medical malprac-
tice awards applies only after the jury has fulfilled it; fact-finding function in the judicial process, and thus does not infringe upon the right to a jury trial. Second, a party’s right to have a jury assess his damages does not extend to having a jury dictate through an award the legal consequences of its assessment. In contrast, the Supreme Court of Kansas struck down its $I,OOO,OOO cap as contravening section 5 of the Kansas Bill of Rights, which states that the right of trial by jury shall be inviolate.’4 According to Kansas common law, this right includes the right to have a jury determine damages, as such determination is an issue left to the finders of fact.Is The language of the preceding cases also illustrates that individual state courts differ in their view of both statutory caps and the role of the judiciary in this regard.Ih Other constitutional challenges to caps on medical malpractice liability arise under the Fourteenth Amendment guarantees of due process and equal protection of the laws.17 Plaintiffs have alleged that by limiting their potential recovery, statutory caps deny them due process.1R Plaintiffs have also argued that in drawing a distinction between medical malpractice victims and other tort victims, statutory caps unfairly discriminate against them, thereby denying them equal protection.IY The court in Boyd v. Bulalu dispensed with both these challenges. According to the court, a limitation on recovery is an “economic regulation” which does not implicate a fundamental right. Applying a “rational basis” test, the court held that the statute bore a reasonable relation to a valid legislative purpose, namely “the maintenance of adequate health care services in the Commonwealth.”z0 The U.S. Supreme Court has declined to review the constitutionality of statutory caps.“ Some state courts, however, have invalidated these statutes on due process grounds. For example, in Morris
v. Savoy, the state supreme court recently held that because Ohio’s $200,000 limit did not in fact lower malpractice rates, it failed to bear a “real and substantial relation to protecting public health and welfare,”Lz thereby violating the state’s due process provision. Furthermore, it unfairly imposed on malpractice victims the costs of benefits accruing to the general public and thus was arbitrary and unreasonable.L’ In a further attempt to limit payments to successful malpractice plaintiffs, some states have revoked the collateral source rule. This rule is consonant with tort law’s deterrence function because it does not allow the defendant to reduce his liability solely because the plaintiff has other means of income. However, it potentially provides a plaintiff with “double recovery.” Similarly, a lump-sum award can overcompensate if a plaintiff recuperates or dies prematurely. The risk of overcompensation has led some states to substitute periodic damage payments. Plaintiffs have challenged modification of the collateral source rule on equal protection grounds because it differentiates between medical malpractice and other tort claimants. These challenges have for the most part fai1ed.l.
Concluding thoughts: Will tort reform solve the problem? The preceding analysis demonstrates that states view tort reform as a legitimate avenue for alleviating the negative impact of medical malpractice on health care. President Bush and some federal legislators seem to agree. The Senate’s tort reform bill also encourages states to adopt alternative means of dispute resolution (ADR), such as mediation or pretrial screening panels. Unlike the reforms discussed in this paper, ADR extends beyond the boundaries of traditional tort doctrines. Those who propose ADR question whether the current tort system, even with reforms, will have any posi-
V o l u m e 20: 3 , Fall 1992
ery for malpractice victims). Perhaps the most dramatic instance of this phenomenon occurred in Virginia in 1987. Following the District Court’s ruling striking down a $I million statutory cap on medical malpractice damages, and upholding an $8.3 million jury award, the leading insurance carrier withdrew from the market, leaving 140 of 600 obstetricians in the state uninsured. See Boyd v. Bulala, 647 F.Supp. 781 (W.D. Va. 1986), aff‘d in part, rev’d in part, Boyd v. Bulala, 877 Gail Javitt, Elaine Lu F.2d 1191 (4th Cir. 1989); Cynthia L. Gallup, Can No-Fault Compensation of Impaired Infants Alleviate the Malpractice Crisis in Obstetrics! 14 J. HEAITH References POLITICS,POL’Y& L. 691 (1989). As I. SeeS. 1123, Iozd Cong., 1st Sess. Weiler points out, the size and unpredictability of a few large tort (1991). 2 . A collateral source refers to other awards can have a major impact on inmeans of compensation available to the surance premiums. Weiler, supra note 6, plaintiff, such as medical or disability inat 3. surance. 8.See Lucas v. US., 757 S.W.zd 3. Defensive medicine refers to pro687,689 (Tex. 1988) (striking down a cedures undertaken by a doctor specifi$~OO,OOO cap as applied to persons “catacally to avoid a future charge of strophically injured by medical negligence.” Id. at 691). States which have malpractice. Most frequently cited as an struck down restrictions on malpractice example of this precaution is the rise in damages include Texas, Florida, Washthe number of caesarian sections perington, Arizona, Kansas, Oklahoma, Illiformed. Institute of Medicine, MEDICAL PROFESSIONAL LIABILITY AND T H E DELIVERY nois, Ohio, North Dakota, Idaho, and New Hampshire. Some states, such as OF OBSTETRICAL CARE: VOl. 175-76 (1989). Kentucky and Wyoming, explicitly proA recent estimate places the combined hibit caps on damages in personal injury costs of insurance premiums, defensive actions in their state constitutions. In conmedicine, and settlements at a cost of $12 trast, Virginia and Maryland have folto $14 billion annually. Allen K. Hutkin, lowed the lead of earlier state court ruling Resolving the Medical Malpractice Crisis: in Indiana, Nebraska, and California in Alternatives to Litigation, 4 J. OF L. & upholding their damage provision limitaHEALTH 21, zz (1989-1990). tions. Weiler, supra note 6 , at 184, n. 98. 4. F. Patrick Hubbard, The Physicians’ 9. Weiler, supra note 6, at 39-40. Point of View Concerning Medical Mal10.“In Suits at common law...the practice: A Sociological Perspective on the right of trial by jury shall be preserved, and Symbolic lmportance of ‘Tort Reform,’ 23 no fact tried by jury, shall be otherwise reGA.L. REV. 295, 300-303 (1989). examined in any Court of the United 5. Kansas Malpractice Victims CoaStates, than according to the rules of the lition v. Bell, 757 P.zd 2 5 1 , 265 (Kan. common law.” U.S. CONST.amend. VII. 1988). 11. 883 F.zd 1 1 5 5 (3rd Cir. 1989). 6. See generally Paul c. Weiler, 12. Id. at 1162. Compare Boyd v. MEDICAL MALPRACTZCE ON TRIAL (1991). Bulala, 877 F.zd 1191, 1196 (4th Cir. 7. A brief historical note: During the 1989) (reasoning that if the legislature I970S, the United States experienced could completely abolish a cause of action what has been termed its first malpracwithout violating the Seventh Amendtice “crisis.” During this period, previous ment, then it could properly limit damunderwriters of malpractice insurance ages recoverable) and Franklin v. Mazda policies abandoned the market in reMotor Corp., 704 F.Supp. 1325, r331 sponse to increasing claims and decreas(D. Md. 1989) (upholding Maryland’s ing profits. Premiums again began to soar general damage limitation statute and in the early 1980s. As a result of rising concluding that capping the damages was premiums and insurers leaving the marmerely another shaping of the law well ket, health care providers found it diffiwithin the bounds of the legislature’s tracult to obtain insurance. See Weiler, ditional powers and prerogatives.). supra note 6 , at 5 . See also Kansas Mal13. 376 S.E.zd 5 2 5 (Va. 1989). practice Victims Coalition, 757 P.rd at I 4. Kansas Malpractice Victims v. 254 (striking down a cap on total recov-
tive impact o n the provision of health care. If they are correct in their assertions that malpractice litigation fails to deter substandard care and to compensate injured patients, then the rationale for maintaining the tordfault model is n o longer valid.’s In that case, a more radical departure from tradition may be necessary.
260
Bell, 757 P.zd 251, 258 (Kan. 1988). 15. Id. See also, Sofie v. Fibreboard Corp., 771 P.zd 711 (Wash. 1984) (invalidating a cap on noneconomic damages because it violated the state constitution’s jury trial provision). 16. Throughout the opinion, Etheridge adopts a deferential stance towards the legislature’s attempt to alleviate the perceived threat to medical services. Kansas Malpractice Victims, on the other hand, stresses that the Bill of Rights exists “to protect the rights of a brain-damaged baby, a quadriplegic farmer or business executive, and a horribly disfigured housewife who is a victim of medical malpractice. They are not there to see that the will of the majority is carried out, but to protect the rights of the minority.” 757 P.zd at 258. 17. “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 proamend. tection of the laws.” U.S. CONST.
xrv, $ 1 .
18. There are two aspects to due process: procedural due process, which guarantees notice and an effective opportunity to be heard, and substantive due process, which protects a person’s property from unfair governmental interference or taking. 19. Courts use different standards to determine whether a statute comports with the Equal Protection Clause. If the regulation involves a “fundamental right” or affects a “suspect class” (such as people of a particular race or religion) the court will use a “strict scrutiny” standard. If such interests are not implicated the court will defer to legislative decisions as long as there is a “rational basis” for the statute’s enactment. 20. Boyd v. Bulala, 877 F.rd 1191, 1197 (4th Cir. 1989). In Etheridge, the Supreme Court of Virginia applied a similar analysis regarding Virginia’s constitution. 2 1 . The court declined to review this issue in Fein v. Permanente Medical Group, 695 P.zd 665 (Cal. 1485) appeal dismissed, 106 S.Ct. 214 (1986) (upholding California’s statutory cap on damages). 2 2 . 576 N.E.zd 765, 770-71 (Ohio 1991). 23. Id. Some state courts have also rejected these statutes on equal protection
grounds. See, e.g., Carson v . Maurer, 424 A.zd 825,836-838 (1980) ($zSo,ooocap violated New Hampshire’s constitutional guarantee of equal protection); Arneson v. Olson,270N.W.zd 125,135-36(N.D. 1978) ($300,000 cap violated equal pro-
Law, Medicine 6 Health Care tection guarantee of North Dakota Constitution). 24. See, eg., Morris, 576 N.E.zd at 772 (permitting reduction of damages by
collateral benefits); Fein u. Permanente Medical Group, 695 P.zd 665 (Cal. 1985) (permitting statutory modification of traditional collateral source rule).
261
2.5. Seegenerally Davis S. Starr, Does Malpractice Litigation Deter Substandard Care? 37 MEDICALTRIAI TECHNIQUL QUAR-
TERLY
360 (1991).
Capping the Crisis: Medical Malpractice and Tort Reform
Introduction President Bush has proposed medical malpractice tort reform as part of his reelection campaign. “The Health Care Liability Reform and Quality of Care Improvement Act of 1991”was introduced in the Senate last year as well: This bill provides economic incentives for states to enact tort reforms such as restricting non-economic damages and allowing collateral source benefitsz to be deducted from prevailing plaintiffs’ awards. Echoing the tortreform theme, Vice-president Dan Quayle recently pledged Republican support in resolving the current crisis in medical liability during his August I 8th acceptance speech at the Republican National Convention. President Bush, Vice President Quayle and Congress are reacting to what has been termed the malpractice “crisis,” a phenomenon which has been observed since the 1970s. Physicians and attorneys have long been at odds over medical malpractice. Many physicians blame attorneys and insurance companies for rising malpractice insurance premiums, billions spent on “defensive medicine,”3 and the erosion of the doctor-patient relationship.
The legal profession has countered that the increasing size and frequency of damage awards represents only a more active plaintiff bar redressing increasingly frequent iatrogenic injuries.4 The tension of these opposing forces has led one judge to compare his role as an arbiter to that of “a noncombatant in ancient Rome about to attempt a crossing of the arena in the coliseum."^ These same tensions have led many state legislatures to cast the broad net of “tort reform,” whose most controversial tenet is the imposition of limits, or caps, on the amount that a patient injured through medical malpractice may collect.
Innovations within the tort framework The traditional goals of the tort system are twofold: compensation and deterrence. For a plaintiff to succeed in professional liability cases, courts require a finding of “fault”-negligent behavior and causation of injury. In medical malpractice suits, a patient must show that she was injured in the course of medical treatment, that the doctor’s treatment caused the injury,
and that the doctor failed to follow the proper standard of care. The everpresent threat of a lawsuit ostensibly insures that doctors do not provide substandard care. Whether fault-based liability in the framework of an adversarial system actually achieves these goals, thereby insuring quality health care, is widely debated.h But the desire to stay within the boundaries of the traditional tort system is compelling. Therefore, the bulk of current innovations encompassed in “tort reform” aim to address the health care “crisis’’’ while retaining fundamental tort doctrines. Policies aimed at reforming the tort system seek to reduce the frequency of litigation and to iimit the size of claims awarded. Legislature9 can devise barriers to the courtroom through mandatory pretrial screening panels or shortened statutes of limitation, thereby discouraging excessive litigation. Alternatively, legislation may restrict recoverable damages by modifying the collateral source rule, which precludes a defendant from deducting a plaintiff‘s insurance or other assets from the jury award, or by imposing a cap on pain and
Law, Medicine & Heulth Care suffering or economic damages. As of 1988, damage limitation provisions had been incorporated into the medical malpractice statutes of at least 14states, with courts divided on the constitutionality of the various state capsR
Judicial responses to constitutional challenges Statutes tinkering with a plaintiff‘s right to redress are subject to a variety of constitutional challenges, both state and federal. Both the Seventh and Fourteenth Amendments to the United States Constitution serve as grounds for challenging damage-limiting statutes, as do similar provisions of the various state constitutions. While federal courts have thus far taken a “hands-off’’ attitude towards legislative tort reform,y several state courts have struck down their statutes on the basis of state constitutional violations. The Seventh Amendment guarantees all citizens the right to a jury trial in cases heard by a federal court and largely prohibits judicial review of jury fact-finding.’” Statutory damage caps restrict a jury’s freedom to determine damages, leading to the charge that they interfere with the jury’s fact-finding role. In Davis v. Omitowoju,“ the Third Circuit rejected the contention that by reducing the jury’s award to the statutory limit of $250,000, the trial judge inappropriately reexamined the jury’s finding of fact. Rather, according to the court, the judge was merely implementing a governmental policy decision clearly within the scope of the legislature’s authority.Iz State courts, however, have not been monolithic in their approach to the implications of damage caps on the right to jury trial provided by their state constitutions. The Supreme Court of Virginia, in Etheridge v. Medical Center Hospitals,‘3 upheld a $750,000cap on general damages on the basis of two lines of reasoning. First, a limitation on medical malprac-
tice awards applies only after the jury has fulfilled it; fact-finding function in the judicial process, and thus does not infringe upon the right to a jury trial. Second, a party’s right to have a jury assess his damages does not extend to having a jury dictate through an award the legal consequences of its assessment. In contrast, the Supreme Court of Kansas struck down its $I,OOO,OOO cap as contravening section 5 of the Kansas Bill of Rights, which states that the right of trial by jury shall be inviolate.’4 According to Kansas common law, this right includes the right to have a jury determine damages, as such determination is an issue left to the finders of fact.Is The language of the preceding cases also illustrates that individual state courts differ in their view of both statutory caps and the role of the judiciary in this regard.Ih Other constitutional challenges to caps on medical malpractice liability arise under the Fourteenth Amendment guarantees of due process and equal protection of the laws.17 Plaintiffs have alleged that by limiting their potential recovery, statutory caps deny them due process.1R Plaintiffs have also argued that in drawing a distinction between medical malpractice victims and other tort victims, statutory caps unfairly discriminate against them, thereby denying them equal protection.IY The court in Boyd v. Bulalu dispensed with both these challenges. According to the court, a limitation on recovery is an “economic regulation” which does not implicate a fundamental right. Applying a “rational basis” test, the court held that the statute bore a reasonable relation to a valid legislative purpose, namely “the maintenance of adequate health care services in the Commonwealth.”z0 The U.S. Supreme Court has declined to review the constitutionality of statutory caps.“ Some state courts, however, have invalidated these statutes on due process grounds. For example, in Morris
v. Savoy, the state supreme court recently held that because Ohio’s $200,000 limit did not in fact lower malpractice rates, it failed to bear a “real and substantial relation to protecting public health and welfare,”Lz thereby violating the state’s due process provision. Furthermore, it unfairly imposed on malpractice victims the costs of benefits accruing to the general public and thus was arbitrary and unreasonable.L’ In a further attempt to limit payments to successful malpractice plaintiffs, some states have revoked the collateral source rule. This rule is consonant with tort law’s deterrence function because it does not allow the defendant to reduce his liability solely because the plaintiff has other means of income. However, it potentially provides a plaintiff with “double recovery.” Similarly, a lump-sum award can overcompensate if a plaintiff recuperates or dies prematurely. The risk of overcompensation has led some states to substitute periodic damage payments. Plaintiffs have challenged modification of the collateral source rule on equal protection grounds because it differentiates between medical malpractice and other tort claimants. These challenges have for the most part fai1ed.l.
Concluding thoughts: Will tort reform solve the problem? The preceding analysis demonstrates that states view tort reform as a legitimate avenue for alleviating the negative impact of medical malpractice on health care. President Bush and some federal legislators seem to agree. The Senate’s tort reform bill also encourages states to adopt alternative means of dispute resolution (ADR), such as mediation or pretrial screening panels. Unlike the reforms discussed in this paper, ADR extends beyond the boundaries of traditional tort doctrines. Those who propose ADR question whether the current tort system, even with reforms, will have any posi-
V o l u m e 20: 3 , Fall 1992
ery for malpractice victims). Perhaps the most dramatic instance of this phenomenon occurred in Virginia in 1987. Following the District Court’s ruling striking down a $I million statutory cap on medical malpractice damages, and upholding an $8.3 million jury award, the leading insurance carrier withdrew from the market, leaving 140 of 600 obstetricians in the state uninsured. See Boyd v. Bulala, 647 F.Supp. 781 (W.D. Va. 1986), aff‘d in part, rev’d in part, Boyd v. Bulala, 877 Gail Javitt, Elaine Lu F.2d 1191 (4th Cir. 1989); Cynthia L. Gallup, Can No-Fault Compensation of Impaired Infants Alleviate the Malpractice Crisis in Obstetrics! 14 J. HEAITH References POLITICS,POL’Y& L. 691 (1989). As I. SeeS. 1123, Iozd Cong., 1st Sess. Weiler points out, the size and unpredictability of a few large tort (1991). 2 . A collateral source refers to other awards can have a major impact on inmeans of compensation available to the surance premiums. Weiler, supra note 6, plaintiff, such as medical or disability inat 3. surance. 8.See Lucas v. US., 757 S.W.zd 3. Defensive medicine refers to pro687,689 (Tex. 1988) (striking down a cedures undertaken by a doctor specifi$~OO,OOO cap as applied to persons “catacally to avoid a future charge of strophically injured by medical negligence.” Id. at 691). States which have malpractice. Most frequently cited as an struck down restrictions on malpractice example of this precaution is the rise in damages include Texas, Florida, Washthe number of caesarian sections perington, Arizona, Kansas, Oklahoma, Illiformed. Institute of Medicine, MEDICAL PROFESSIONAL LIABILITY AND T H E DELIVERY nois, Ohio, North Dakota, Idaho, and New Hampshire. Some states, such as OF OBSTETRICAL CARE: VOl. 175-76 (1989). Kentucky and Wyoming, explicitly proA recent estimate places the combined hibit caps on damages in personal injury costs of insurance premiums, defensive actions in their state constitutions. In conmedicine, and settlements at a cost of $12 trast, Virginia and Maryland have folto $14 billion annually. Allen K. Hutkin, lowed the lead of earlier state court ruling Resolving the Medical Malpractice Crisis: in Indiana, Nebraska, and California in Alternatives to Litigation, 4 J. OF L. & upholding their damage provision limitaHEALTH 21, zz (1989-1990). tions. Weiler, supra note 6 , at 184, n. 98. 4. F. Patrick Hubbard, The Physicians’ 9. Weiler, supra note 6, at 39-40. Point of View Concerning Medical Mal10.“In Suits at common law...the practice: A Sociological Perspective on the right of trial by jury shall be preserved, and Symbolic lmportance of ‘Tort Reform,’ 23 no fact tried by jury, shall be otherwise reGA.L. REV. 295, 300-303 (1989). examined in any Court of the United 5. Kansas Malpractice Victims CoaStates, than according to the rules of the lition v. Bell, 757 P.zd 2 5 1 , 265 (Kan. common law.” U.S. CONST.amend. VII. 1988). 11. 883 F.zd 1 1 5 5 (3rd Cir. 1989). 6. See generally Paul c. Weiler, 12. Id. at 1162. Compare Boyd v. MEDICAL MALPRACTZCE ON TRIAL (1991). Bulala, 877 F.zd 1191, 1196 (4th Cir. 7. A brief historical note: During the 1989) (reasoning that if the legislature I970S, the United States experienced could completely abolish a cause of action what has been termed its first malpracwithout violating the Seventh Amendtice “crisis.” During this period, previous ment, then it could properly limit damunderwriters of malpractice insurance ages recoverable) and Franklin v. Mazda policies abandoned the market in reMotor Corp., 704 F.Supp. 1325, r331 sponse to increasing claims and decreas(D. Md. 1989) (upholding Maryland’s ing profits. Premiums again began to soar general damage limitation statute and in the early 1980s. As a result of rising concluding that capping the damages was premiums and insurers leaving the marmerely another shaping of the law well ket, health care providers found it diffiwithin the bounds of the legislature’s tracult to obtain insurance. See Weiler, ditional powers and prerogatives.). supra note 6 , at 5 . See also Kansas Mal13. 376 S.E.zd 5 2 5 (Va. 1989). practice Victims Coalition, 757 P.rd at I 4. Kansas Malpractice Victims v. 254 (striking down a cap on total recov-
tive impact o n the provision of health care. If they are correct in their assertions that malpractice litigation fails to deter substandard care and to compensate injured patients, then the rationale for maintaining the tordfault model is n o longer valid.’s In that case, a more radical departure from tradition may be necessary.
260
Bell, 757 P.zd 251, 258 (Kan. 1988). 15. Id. See also, Sofie v. Fibreboard Corp., 771 P.zd 711 (Wash. 1984) (invalidating a cap on noneconomic damages because it violated the state constitution’s jury trial provision). 16. Throughout the opinion, Etheridge adopts a deferential stance towards the legislature’s attempt to alleviate the perceived threat to medical services. Kansas Malpractice Victims, on the other hand, stresses that the Bill of Rights exists “to protect the rights of a brain-damaged baby, a quadriplegic farmer or business executive, and a horribly disfigured housewife who is a victim of medical malpractice. They are not there to see that the will of the majority is carried out, but to protect the rights of the minority.” 757 P.zd at 258. 17. “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 proamend. tection of the laws.” U.S. CONST.
xrv, $ 1 .
18. There are two aspects to due process: procedural due process, which guarantees notice and an effective opportunity to be heard, and substantive due process, which protects a person’s property from unfair governmental interference or taking. 19. Courts use different standards to determine whether a statute comports with the Equal Protection Clause. If the regulation involves a “fundamental right” or affects a “suspect class” (such as people of a particular race or religion) the court will use a “strict scrutiny” standard. If such interests are not implicated the court will defer to legislative decisions as long as there is a “rational basis” for the statute’s enactment. 20. Boyd v. Bulala, 877 F.rd 1191, 1197 (4th Cir. 1989). In Etheridge, the Supreme Court of Virginia applied a similar analysis regarding Virginia’s constitution. 2 1 . The court declined to review this issue in Fein v. Permanente Medical Group, 695 P.zd 665 (Cal. 1485) appeal dismissed, 106 S.Ct. 214 (1986) (upholding California’s statutory cap on damages). 2 2 . 576 N.E.zd 765, 770-71 (Ohio 1991). 23. Id. Some state courts have also rejected these statutes on equal protection
grounds. See, e.g., Carson v . Maurer, 424 A.zd 825,836-838 (1980) ($zSo,ooocap violated New Hampshire’s constitutional guarantee of equal protection); Arneson v. Olson,270N.W.zd 125,135-36(N.D. 1978) ($300,000 cap violated equal pro-
Law, Medicine 6 Health Care tection guarantee of North Dakota Constitution). 24. See, eg., Morris, 576 N.E.zd at 772 (permitting reduction of damages by
collateral benefits); Fein u. Permanente Medical Group, 695 P.zd 665 (Cal. 1985) (permitting statutory modification of traditional collateral source rule).
261
2.5. Seegenerally Davis S. Starr, Does Malpractice Litigation Deter Substandard Care? 37 MEDICALTRIAI TECHNIQUL QUAR-
TERLY
360 (1991).
