Neo-No-Fault Remedies for Medical Injuries: Coordinated Statutory and Contractual Alternatives

Abstract

Suits to recover for personal injuries resulting from medical malpractice can be among the most unpredictable and most complex to litigate. Because provider fault is frequently difficult to measure-even (and sometimes especially) with the assistance of the parties' alleged (and opposing) expertsa lay jury is apt to be influenced more by its subjective and emotional reaction to the injured patient's plight than by the appropriateness of the defendant's conduct. Thus, lengthy and costly litigation can yield unpredictable results, and this unpredictability raises the costs of claims evaluation and often makes settlements harder to reach. Perceptions of the system as a game of chance rather than as a sound mechanism for catching negligent behavior may undercut the system's value in raising professional standards and deterring injuries.' If providers of health care believe that the legal system lacks the capacity to be reasonable and may penalize even the appearance of negligence, they may err in the direction of practicing inefficient defensive medicine by spending large amounts to make it appear that nothing was spared in the plaintiff's case. The system's haphazardness also diminishes its value as a protection for injured patients. One seriously injured party may recover nothing at all or far less than fair compensation, while another receives an award far in excess of his actual loss. Inconsistency is enhanced by allowing juries to award damages for such noneconomic losses as pain and suffering and loss of consortium. Because monetary valuation of such nonmonetary losses is inherently irrational, plaintiffs are encouraged to play upon the jury's sympathy, further distracting attention from the issue of provider fault. The cost of the tort system is also increased, without increasing its value as a