Learning to Crawl: The Use of Voluntary Caps on Damages in Medical Malpractice Litigation

Abstract

Medical malpractice insurance "crises" seem to recur with distressing frequency. Indeed, the escalating costs of malpractice insurance premiums have become the focal point for advocates of tort reform. Although medical malpractice litigation has been studied more intensively than most other sorts of personal injury litigation, we still know little about what changes to the malpractice litigation system might actually work. Many reforms have been tried; little has worked. The two most commonly attempted reforms - at least at present - are legislatively imposed caps on non-economic damages (i.e., pain and suffering) and the use of screening panels. Neither of these alternatives offers a satisfactory resolution to the problem.

This article proposes the use of voluntary caps, selected (if at all) by the plaintiff and the plaintiff's attorney. By the use of three separate litigation "tracks," incentives can be provided for plaintiffs to agree to caps on damages, while also providing separate inducements for the insurers who defend malpractice defendants. The underlying benefit for both sides would be substantially reduced costs of litigation. The end result would be improved access to the courts for injured plaintiffs and a more rational claims resolution system.

Legislation implementing the proposal would not be necessary; tailored discovery scheduling orders would suffice. In a politically charged climate, broad scale, equitable reform is not likely. Instead, we should begin a steady movement towards such reform, in stages. We need to learn to crawl, before we can walk.

Keywords: medical malpractice, damages, caps