1. Current Legal and Ethical Controversies in American Health Care
Strengths and Shortcomings of the Medical Malpractice System

2. Goals of the Legal System Regarding Patients and Their Medical Care?
Compensate [some] injured patients
Improve quality of care, by deterring (punishing) undesirable conduct
Efficiency
Sensitivity
Specificity
Does system “overdeter” physicians to overtreat or undertreat patients? Defensive medicine?
Fairness

3. The Current Malpractice System
Based on individual civil lawsuits for $$ damages
Main theory is Negligence. Elements:
Duty of due care owed, based on a relationship
Unintentional breach/violation of duty
Causation
Damage/Injury

4. Process Complaint filed Answer to the complaint Discovery process
Written interrogatories, with document requests
Request for admissions
Depositions
Settlement attempts

5. Trial
Post-trial motions
Appeal(s)

6. Supplements to the Current System
Criminal prosecutions
Professional discipline apparatus

7. Defensive Medicine Good defensive medicine Bad defensive medicine
Assurance behavior
Avoidance behavior

8. “Reforms”/Alternatives
Tinkering
Damage caps
Shorter statutes of limitations
Affidavit requirement
Limits on who can be an expert witness
Limits on attorneys’ fees
Early offer plans

9. “Reforms”/Alternatives (cont.)
More radical
Health courts
Enterprise liability
Administrative compensation system (like Workers’ Compensation)
Florida NICA system
Better first party insurance
Social
Private

10. Impediments to Change Political Economic Legal
Federalist system—50+ different jurisdictions
Constitutional right to a jury trial
Equal Protection