Malpractice reform in the 1990s: past disappointments, future success?

Abstract

State governments, the federal government, interest groups, and researchers have proposed various approaches to reform the malpractice system. Malpractice reforms fall into two generations. First-generation reforms are those adopted by states beginning in the 1970s chiefly to reduce claim frequency and severity and thereby improve the malpractice system primarily from the perspective of providers and insurers. Scholars and interested constituencies developed second-generation reforms, such as use of medical practice guidelines to set the standard of care, various no-fault approaches, enterprise liability, mandated alternative dispute resolution, and scheduling damages, to streamline the adjudication and compensation system from the perspective of claimants and providers. Research indicates that first-generation reforms have not been very effective in achieving the compensation and deterrence goals of tort, whereas second-generation reforms hold greater promise of doing so. This analysis of state and federal legislation indicates that states, and more recently Congress, have been reluctant to adopt second-generation reforms but continue to promote and/or adopt first-generation reforms. The strength of the provider lobby, concerns of health care reformers about the relationship between defensive medicine and health system costs, and lack of an organized consumer force for second-generation malpractice reform are important explanations of why the states and Congress have not embraced second-generation reforms. Furthermore, federal and state legislative interest in second-generation reforms, although never high, is waning in the current health care reform debate.