Notes and Comments

The “Medical Malpractice Crisis” and Statutory Change in the Common Law.In the latter part of the 1970’s and again in the mid-1980’s,an increase in the number of medical malpractice suits produced sudden sharp rises in the premiums for,and in some instances,unavailability,of malpractice liability insurance.This in turn produced alarm within the profession and insistent demands that the state legislatures find ways of alleviating the “crisis” caused by the burden of the malpractice insurance premiums and the unavailability of insurance.Much of the blame was placed by the lobbyists on the law of negligence,and various modifications of the substantive law of torts were rushed through the legislatures.Almost every state passed legislation of some sort.The statutes have varied considerably and there is no particular pattern to them.Changes were made in the standard of care,the doctrine of informed consent,the doctrine of res ipsa loquitur,the collateral source rule,the statute of limitations,imposing limits on the amount that could be received for pain and suffering or on the total amount recovered in a malpractice action,and prohibiting the setting forth in a complaint of the amount of the relief requested.Many states required submission of the case to a screening board before bringing action;others required submission to arbitration and others sought to impose restrictions on the contingent-fee system.The impact of the reform initiatives are difficult to discern….

Some individual doctors brought malicious prosecution or abuse of process suits against the patient (or his attorney) for bringing unwarranted civil actions.This latter device did not prove to be very successful,and state supreme courts held a number of the statutory provisions to be unconstitutional for various reasons;but most of the states still have some of the statutory modifications in effect.An attorney must therefore carefully research state statutes as well as common law in this area.(https://www.daowen.com)