The number of medical malpractice suits filed in this country and the size of the jury awards are no longer matters of interest only to doctors. The cost, in terms of extremely high premiums and the practice of expensive "defensive medicine" designed to avoid suits, is passed on to to patients and taxpayers. Some physicians in high- risk specialties and in certain areas of the country pay as much as $80,000 a year in malpractice premiums. Still, insurers report, they pay out more in claims under these policies than they collect in premiums.
Last month, an American Medical Association task force issued recommendations for addressing the malpractice problem. Public education and quality control within the medical profession were stressed. So was the need for tort reform -- the revision of laws and procedures governing negligence litigation -- that would make the resolution of these cases faster, less burdensome and fairer to all the litigants. In the mid-'70s, when insurers first balked at providing this coverage, most states enacted some kind of tort reform, but many of these state laws are still being tested in the courts. In California, a leading state in terms of volume of suits and the sweeping nature of the reform, the constitutionality of the statute was resolved piecemeal, with the final state Supreme Court judgment handed down only last Thursday.
The California law has three major provisions: Attorneys' fees in medical malpractice cases must be based on a sliding scale from 40 percent of the first $50,000 recovered down to 10 percent for awards over $200,000. Payments are made over the lifetime of the plaintiff, instead of in a lump sum, and cease when he dies. And recoveries for pain and suffering cannot exceed $250,000. Other states have adopted similar, though generally less stringent, forms of these controls and encouraged arbitration and the revision of statutes of limitations and rules of evidence.
The impact of these state laws is uncertain because some are still being tested. Indiana's reforms have worked well. Florida's have been the subject of continuous conflict in courts and in the legislature. Clearly, California will be the state to watch. The reforms have now been upheld by the highest court of the state, and they are major changes. If, over the next few years, they facilitate settlements, reduce litigation and stabilize insurance premiums, the California rules will provide an effective model for other states.