1 The malpractice crisis is felt by the entire nation. For example, the Healthcare Commission of Wyoming has stated that malpractice tort reform as “its first priority”, and the Governor emphasized the importance by requesting specific recommendations to combat this crisis. Allison Fashek, Wyoming Healthcare Commission Focuses On Tort Reform, WYO. EAGLE TRIBUNE, July 30, 2003, A3, available at http://www.wyomingnews.com/news/more.asp?StoryID=6919&arch=true. Kentucky physicians experienced an insurance rate increase of 29% in July of 2003, following a 45% increase in January of 2002. Patrick Howington, State Oks 29% Malpractice Insurance Increase, THE COURIERJOURNAL, July 31, 2003, 1F, available at http://www.courier-journal.com. The malpractice insurer OHIC also asked for a 157% increase on insurance rates for hospitals and other healthcare facilities, only to be rejected by the State Insurance Commissioner because of a new state law that requires approval for any rate increase over 25%—OHIC is expected to reapply soon by reducing the increase to 60%. Id. Legislators in Connecticut have been asked by the State Medical Society to pass a bill that would place a $250,000 cap on non-economic damages, as well as other ways to reduce malpractice insurance rates. Christopher Hoffman, Doctors Push to Curb Malpractice Insurance Fees, NEW HAVEN REGISTER, July 29, 2003, available at http://www.nhregister.com/site/news.cfm?newsid=9915401&BRD=1281&PAG=461&dept_id=517515&rfi=8&xb=qahez. Governor John Rowland has endorsed the call for a special session to consider malpractice legislation and capping of non-economic damages brought by a small group of physicians who apparently felt so strongly about the issue that they traveled to the state Capitol to petition for such session. Id. Trial attorneys and patient advocacy groups feel equally strongly about the issue, but they oppose the cap and propose to increase regulation on the insurance industry to reduce costs. Id. Despite Nevada's recently passed medical liability reform bill (AB 1), which took effect in October of 2002 (the bill caps non-economic damage at $350,000, caps civil damages arising from care related to trauma injury to $50,000, expands its “good Samaritan” law, and mandates settlement conferences, among other provisions), fifty-eight physicians in Nevada are losing their insurer. See ADVOCACY RESOURCE CTR., AMERICAN MED. ASS’N, ANALYSIS OF NEVADA's LIABILITY REFORM LAW AB1 at www.ama-assn.org/ama1/pub/upload/mm/378/nevada1revised.doc (Aug. 7, 2002). Their insurer, Medical Insurance Exchange of California, cites a $20 million deficit as the main reason to leave Nevada. Cy Ryan, Doctors Should Not Have Troubles Finding Insurance, LAS VEGAS SUN, July 31, 2003, available at http://www.lasvegassun.com/sunbin/stories/sun/2003/jul/31/515416150.html.

Other states have also acted upon the need to bring malpractice premiums down by enacting new legislations. The State of Idaho passed H.B. 92, which Governor Kempthorne signed on March 26, 2003. This bill caps non-economic damages at $250,000 pursuant to annual inflation adjustment, and caps punitive damages at the greater of $250,000 or three times compensator damages. See ADVOCACY RESOURCE CTR., AMERICAN MED. ASS’N, SUMMARY OF IDAHO's MEDICAL LIABILITY REFORM LAW HB 92, at http://www.ama-assn.org/ama1/pub/upload/mm/378/idaho2revised.doc (Mar. 17, 2003). Arkansas passed HB 1038, or the Civil Justice Reform Act of 2003, which caps punitive damage at no greater than $250,000 or three times compensatory damage not exceeding $1,000,000. The Act also mandated a separate hearing for punitive damages and other requirements for plaintiffs. Governor Huckabee signed the bill into law on March 15, 2003. See ADVOCACY RESOURCE CTR., AMERICAN MED. ASS’N, SUMMARY OF ARKANSAS’ MEDICAL LIABILITY REFORM LAW HB 1038, at http://www.ama-assn.org/ama1/pub/upload/mm/378/arkansas1038revised.doc (Mar. 24, 2003). HB 2 from Mississippi caps non-economic damages to $500,000 adjustable to different timetables, and abolishes joint liability for non-economic damages. Governor Musgrove signed the bill on October 8, 2002, and the bill took effect on January 1, 2003. See ADVOCACY RESOURCE CTR., AMERICAN MED. ASS’N, SUMMARY OF MISSISSIPPI's MEDICAL LIABILITY REFORM LAW HB 2, at http://www.amaassn.org/ama1/pub/upload/mm/378/mississippi2revised.doc (Oct. 8, 2002). West Virginia's Governor Wise signed HB 2122 into law on March 11, 2003. In addition to a cap of $500,000 for civil liability in the event of death, this bill caps non-economic damage at $250,000-regardless of the number of plaintiffs and number of defendants. See ADVOCACY RESOURCE CTR., AMERICAN MED. ASS’N, SUMMARY OF WEST VIRGINIA's MEDICAL LIABILITY REFORM LAW HB 2122, at http://www.amaassn.org/ama1/pub/upload/mm/378/westvirginiarevised.doc (Mar. 17, 2003). The bill also established more concrete standards of certificate of merit, loss of chance, and other issues. Id.

2 COMMITTEE ON QUALITY OF HEALTH CARE IN AMERICA, INSTITUTE OF MEDICINE, TO ERR IS HUMAN – BUILDING A SAFER HEALTH SYSTEM (1999), available at http://www.iom.edu/includes/DBFile.asp?id=4117.

3 U.S. GENERAL ACCOUNTING OFFICE, GAO-03-702, MEDICAL MALPRACTICE INSURANCE: MULTIPLE FACTORS HAVE CONTRIBUTED TO INCREASED PREMIUM RATES, 6 (2003) [hereinafter GAO- 03-702].

4 AMERICAN MED. ASS’N, AMERICA's LIABILITY CRISIS: A NATIONAL VIEW, at http://www.amaassn.org/ama/noindex/category/11871.html (Oct. 11, 2004).

5 GAO-03-702, supra note 3, at 33.

6 Id.

7 Medical Malpractice Litigation Raises Health Care Cost, Reduces Access and Lowers Quality of Care, ISSUE BACKGROUNDER (Employment Policy Foundation, Wash. D.C.) (June 19, 2003) at 7, available at http://www.epf.org/pubs.asp [hereinafter ISSUE BACKGROUNDER] (noting that an empirical study has found that a 3% rise in health insurance costs results in 1% decrease in the number of employees covered by employer-sponsored plan. At least $17.4 billion may be saved from improving the current medical insurance industry cost structure.)

8 House Oks Liability Reform, AMA VOICE (American Med. Ass’n, Chicago, Ill.), Mar./Apr. 2003 at 8 [hereinafter AMA VOICE].

9 Id.

10 Donald Palmisano, Will Your Physician Be There? The Medical Liability Crisis in America, Speech at the National Press Club Newsmaker Luncheon (July 9, 2003), available at http://www.amaassn.org/ama/pub/article/8716-7863.html.

11 Id.

12 Help Efficient, Accessible, Low-Cost, Timely Healthcare (HEALTH) Act of 2003, H.R. 5 108th Cong. (2003), available at http://thomas.loc.gov.

13 Donald J. Palmisano, Editorial, For Reasonable Liability Reform, WASH. POST, July 29, 2003 at A16.

14 Patients First Act of 2003, S.11, 108th Cong. (2003), available at http://thomas.loc.gov.

15 U.S. Senate Roll Call Votes, 108th Cong. 1st Sess. (2003), available at http://www.senate.gov/legislative/LIS/roll_call_lists/roll_call_vote_cfm.cfm?congress=108&session=1&vote=00264 (July 9, 2003).

16 See generally, 149 CONG. REC. S9113 (daily ed. July 9, 2003) (statement of Sen. Bunning).

17 See generally, CALIFORNIA MEDICAL ASSOCIATION, Two National Tort Reform Propsals: Proposed National MICRA statute v. HR5 (2003 Greenwood Bill) (Feb. 21, 2003), at http://www.calphys.org/html/micra_comparison.htm (Jan 31, 2003).

18 See OFFICE OF THE ASSISTANT SECRETARY FOR PLANNING AND EVALUATION, U.S DEPARTMENT OF HEALTH AND HUMAN SERVICES, Addressing the New Health Care Crisis – Reforming the Medical Litigation System to Improve the Quality of Health Care, 24 (2003), available at http://aspe.hhs.gov/daltcp/reports/medliab.htm [hereinafter Addressing the New Health Care Crisis]; Grace Vandecruze, Has the Tide Begun to Turn for Medical Malpractice?, 15 Health Lawyer 15 (2002); Patient Access Crisis: The Role of Medical Litigation: Hearing Before the United States Senate Judiciary Committee and Health, Education, Labor, and Pensions Committee, 108th Cong. 26 (2003)(testimony of Lawrence E. Smarr, President, Physician Insurers Association of America) available at http://www.thepiaa.org/pdf_files/February_11_Testimony.pdf [hereinafter PIAA Testimony].

19 CALIFORNIA MEDICAL ASSOCIATION, MICRA's Basic Provisions (Jan. 31, 2003), at http://www.calphys.org/html/bb112.asp (Feb. 21, 2003).

20 OFFICE OF THE ASSISTANT SECRETARY FOR PLANNING AND EVALUATION, U.S DEPARTMENT OF HEALTH AND HUMAN SERVICES, Addressing the New Health Care Crisis – Reforming the Medical Litigation System to Improve the Quality of Health Care, 24 (2003), available at http://aspe.hhs.gov/daltcp/reports/medliab.htm.

21 Id.

22 Vandecruze, supra note 18. In a report from The Governor's Select Task Force on Health Care Professional Liability Insurance of Florida, the task force concluded that the limitation on damages to be “the only provision proven to be effective in reducing the severity of judgment”. John C. Hitt et al., Report of the Governor's Select Task Force on Health Care Professional Liability Insurance of Florida vi (2003) available at http://www.myflorida.com/myflorida/governorsoffice/malpractice/malpractice_report.html.

23 PIAA Testimony, supra note 18, at 22; AMERICAN ACADEMY OF ACTUARIES, Medical Malpractice Tort Reform: Lessons from the States (1996), available at http://www.actuary.org/briefs.htm.

24 PIAA Testimony, supra note 18, at 26.

25 ISSUE BACKGROUNDER, supra note 7, at 6.

26 Fred J. Hellinger & William E. Encinosa, The Impact of State Laws Limiting Malpractice Awards on the Geographic Distribution of Physicians, at http://www.ahcpr.gov/research/tortcaps/tortcaps.htm (July 3, 2003).

27 Jonathan, J. Lewis, Putting MICRA Under the Microscope: the Case for Repealing California Civil Code Section 3333.1(A), 29 W. ST. U. L.Rev. 173, 188 (2001)Google Scholar.

28 Id.

29 Id. at 185.

30 Id. at 185-86.

31 S.Y. Tan, The Medical Malpractice Crisis: Will No-Fault Cure the Disease?, 9 U. HAW. L. Rev. 241, 263 (1987).

32 FIRST PROFESSIONAL INSURANCE COMPANY, Fact and Fiction, at http://www.weblog.nohair.net/archives/000229.html (Feb. 15, 2003).

33 U.S. GENERAL ACCOUNTING OFFICE, GAO-03-836, MEDICAL MALPRACTICE-IMPLICATIONS OF RISING PREMIUMS ON ACCESS TO HEALTH CARE, 33-34 (2003) [hereinafter GAO-03-836].

34 Id. at 33.

35 Surcharges can range from a small amount to levels even greater than the base rate itself. Id.

36 Id. at 33-44.

37 Michael L. Rustad, Smoke Signals from Private Attorneys General in Mega Social Policy Cases, 51 DEPAUL L. REV. 511, 528 (2001).

38 IND. CODE ANN. § 34-18-14-3 (West 2004).

39 Eleanor, D. Kinney, Indiana's Medical Malpractice Reform Revisited: A Limited Constitutional Challenge, 31 IND. L. REV. 1043, 1048 (1998)Google Scholar.

40 Id. See also Douglas v. Hugh A. Stallings, M.D., Inc., 870 F.2d 1242 (7th Cir.1989) (upholding the Indiana Medical Malpractice Act's statute of limitations against equal protection and due process challenges).

41 Kinney, supra note 39, at 1047.

42 Id. at 1047-48.

43 Id.

44 Id.

45 Id.

46 Id.

47 Randall, R. Bovbjerg, Lessons for Tort Reform from Indiana, 16 J. HEALTH POL. POL’Y & L. 465, 470 (1991)Google Scholar.

48 Id.

49 Id. at 1044-50.

50 Kinney, supra note 39, at 1048.

51 Id. at 1050.

52 Bovbjerg, supra note 47, at 477.

53 Thomas, J. Kresl, Health Care Litigation in Colorado: A Survey of Recent Decision, 30 COLO. LAW. 91, 92 (2001)Google Scholar.

54 John G. Salmon, Fifteen Years of Colorado Legislative Tort Reform: Where Are We Now?, 30 COLO. LAW. 5, 14 (Feb 2001).

55 AMA VOICE, supra note 8.

56 Id.

57 Salmon, supra note 54, at 14.

58 Id.

59 Henry Cohen, Report for Congress, Medical Malpractice Liability Reform: Legal Issues and Fifty-State Survey of Caps on Punitive Damages and Noneconomic Damages, (citing WIS. STAT §§ 655.017, 893.55(4), 895.04(4)), available at http://www.house.gov/htbin/crsprodget?/rl/RL31692 (Oct. 6, 2003).

60 WIS. STAT §§ 655.017, 893.55 (2000).

61 See generally Czapinski v. St. Francis Hosp., Inc., 613 N.W. 3d 120 (Wis. 2000); Guzman v. St. Francis Hosp., Inc., 623 N.W. 2d 776 (Wis. Ct.App. 2000); Herman v Milwaukee Children's Hospital (1984, App) 361 N.W. 2d 297 (Wis. Ct.App. 1984); Jelinek v St. Paul Fire & Casualty Ins. Co. 512 N.W. 2d 764 (Wis. 1994); Martin by Scoptur v Richards 531 N.W. 2d 70 (Wis. 1995); Rineck v Johnson 456 N.W. 2d 336 (Wis. 1990); Wisconsin Patients Compensation Fund v St. Paul Fire & Marine Ins. Co. 349 N.W. 2d 719 (Wis. Ct. App. 1984).

62 The reduction was from 1.4 to lower than 1.0, and the ratio has been maintained at below 1.0. W. Kip Viscusi & Patricia Born, Medical Malpractice Insurance in the Wake of Liability Reform, 24 J. LEGAL STUD. 463, 471-74 (1995). Further, the loss ratio median for medical malpractice declined by 0.4 from 1985 to 1991, whereas the decline for the seventy-fifth percentile was 2.4. Id.

63 Id. at 489.

64 W., Kip Viscusi, Pain and Suffering: Damages in Search of a Sounder Rationale, 1 MICH. L. & POL’Y REV. 141, 165 (1996)Google Scholar.

65 PIAA data show that from 1988 to 2001, the average claim payment is at least double of the median claim payment, and the gap is widening. PIAA TESTIMONY, supra note 24, at 15.

66 According to the Viscusi & Born report, tort reform in Michigan is also successful in lowering loss ratio. Viscusi & Born, supra note 62, at 471. However, the AMA apparently sees “problematic signs” in Michigan. AMA VOICE, supra note 8. The Michigan tort reform started in 1975, and the both punitive and non-economic damages have been capped. The legislation also created an arbitration (MMAA) provision. Michigan placed high importance on its arbitration program, and it is one of the largest programs in the country. John, P. Desmond, Michigan's Medical Malpractice Reform Revisited – Tighter Damage Caps and Arbitration Provisions, 11 T.M. COOLEY L. REV. 159 (1994)Google Scholar. However, a 1991 study showed that arbitration had not decreased insurance premiums. Id. at 175. The increases in premiums in Michigan are relatively small. The average highest premium increase in Michigan is 39% and 13% in 2001 and 2002, similar to that in New Mexico (12% and 42%), thus it is unclear why New Mexico is considered okay and Michigan “problematic”. AMA VOICE, supra note 8.

67 Duren v. Suburban Community Hospital, 24 Ohio Misc. 2d 25, 27 (Ohio Com. Pl. 1985).

68 Ohio enacted its Medical Malpractice Act in 1975, known as the 1975 Ohio Laws 2809, and also enacted the Tort Reform Act in 1987 as 1987 Ohio Law 1661. Jonathan, L. Entin, Judicial Selection and Political Culture, 30 CAP. U. L. REV. 523, 557 n. 16 (2002)Google Scholar; see also AMERICAN ACADEMY OF ACTUARIES, supra note 23.

69 AMERICAN ACADEMY OF ACTUARIES, supra note 23.

70 Id.

71 Galayda v. Lake Hosp. Sys., Inc., 644 N.E. 2d 298, 302 (Ohio 1994) (holding that the statutory requirement of periodic payment of future damage in a medical malpractice suit is unconstitutional). Yet an Ohio court found the statutory reduction of collateral benefit in medical malpractice suits constitutional. Morris v. Savoy, 576 N.E.2d 765 (Ohio 1991). However, legislation subsequently repealed this collateral resource rule by the 1996 Tort Reform Act, effective January 27, 1997. Furthermore, the repeal was subsequently rendered ineffective in 1999 when the Ohio court found the entire 1996 Tort Reform Act to be unconstitutional in State ex rel. Ohio Academy of Trial Lawyers v. Sheward, 715 N.E.2d 1062 (Ohio 1999). The General Assembly then repealed the 1996 Tort Reform Act in 2001 Sub. S.B. 108, which took effect on July 6, 2001. Sub. S.B. 108, 124th Gen. Assem., Reg. Sess. (Ohio 2001). Both the courts and legislature seemed confused about tort law reforms, and the confusion certainly undermined the predictability of the system and may have caused the “crisis”, at least in this state. For a detailed analysis of S.B 108, see http://www.lsc.state.oh.us/analyses/124index.html.

On January 10th of 2003, Governor Taft signed the latest comprehensive medical liability reform bill (S.B. 281), available at http://www.ama-assn.org/ama1/pub/upload/mm/378/ohio281revised.doc (last visited Mar. 9, 2004). This legislation establishes a non-economic cap on a sliding scale: the cap is limited to the greater of $250,000 or three times the plaintiff's economic loss up to a maximum of $350,000 for each plaintiff or $500,000 if multiple plaintiffs are involved. In most cases the cap is limited to $350,000. Furthermore, there will be no joint and several liability for non-economic damages. Other aspects of the tort reform includes a four-year statute of limitation to discover and file suit; collateral source rule; periodic payment if future damage exceeds $50,000; and binding arbitration. Learning from the past failures of tort reform, the legislature specifically added a section detailing the magnitude of the malpractice crisis, and “respectfully requests the Court to uphold [the legislature’s] intent in drafting and passing the legislation.”

72 Laura A. Bischoff, Panel Possible in Malpractice Lawsuit, DAYTON DAILY NEWS, July 27, 2003, at B1.

73 Id.

74 Id.

75 Id.

76 Darrell, L. Keith, The Texas Medical Liability and Insurance Improvement Act – A Survey and Analysis of its History, Construction and Constitutionality, 26 BAYLOR L. REV. 265, 265 (1984)Google Scholar.

77 Rustad, supra note 37, at 528.

78 The confusion arises when the Lucas opinion rendered damage capping unconstitutional; Lucas v. United States, 757 S.W.2d 687 (Tex. 1988); but subsequently limited the Lucas ruling to common-law malpractice suits only, and held that the statutory cap applies to wrongful death actions. Rose v. Doctors Hosp., 801 S.W.2d 841 (Tex 1995) (note: Rose v. Doctors Hosp. has been superseded by statute). See Upton County v. Brown, 960 S.W.2d 808 (Tex. App. El Paso 1997). The Texas Supreme Court has also held that the provision of statute of limitations for medical malpractice claims which tolls action of minor until minor's 12th birthday is unconstitutional. See, e.g., Weiner v. Wasson, 900 S.W.2d 316 (Tex. 1995).

79 Act of June 2, 2003, ch. 74, § 74.301, 2003 Tex. 78 Reg. Sess., available at http://www.capitol.state.tx.us.

80 Id.

81 Id.

82 TEX. CONST. amend., H.J.R. 3, available at http://capitol.state.tx.us.

83 TEXAS ACADEMY OF FAMILY PHYSICIANS, 12 FAST FACTS ABOUT PROPOSITION 12, available at http://www.tafp.org/advocacy/Prop12.htm.

84 Id.

85 TEXANS AGAINST PROP. 12, PROPOSITION 12 IS BAD FOR SENIOR CITIZENS IN TEXAS, available at http://www.texasagainstprop12.com.

86 ISSUE BACKGROUNDER, supra note 7, at 4.

87 GAO-03-702, supra note 5, at 3.

88 Palmisano, supra note 10.

89 Joni James, Deal Struck on Medical Malpractice Insurance, THE MIAMI HERALD, Aug. 8, 2003 at 6B. See also infra notes 113-116.

90 Jessica, Fonseca-Nader, Florida's Comprehensive Medical Malpractice Reform Act: Is it Time for a Change?, 8 ST. THOMAS L. REV. 551, 551 (1996)Google Scholar.

91 Id. at 556-57.

92 Id. at 554-55.

93 Randall, Bovjerg & Frank, Sloan, No-Fault for Medical Injury: Theory and Evidence, 67 U. CIN. L. REV. 53, 110 (1998)Google Scholar (discussing the impact of “No-Fault” policies in medical reform).

94 Miami v. Escharte, 618 S. 2d 189, 198 (Fla. 1993) (holding that the Florida arbitration statute and strong regulation of the medical profession are constitutional).

95 Fonseca-Nader, supra, note 90, at 557.

96 Frank, A. Sloan et al., Effects of Tort Reforms on the Value of Closed Medical Malpractice Claims: a Microanalysis, 14 J. HEALTH POL. POL’Y & L. 663, 681 (1989)Google Scholar.

97 Bovjerg & Sloan, supra note 93, at 56.

98 Id. at 99.

99 Id. at 100-01.

100 Id. at 106.

101 Id.

102 Id.

103 Id. at 108.

104 Id.

105 Id. at 101.

106 Id. at 104.

107 Id. at 99.

108 Id. at 109.

109 Frank, Sloan, The Road from Medical Injury to Claims Resolution: How No-Fault and Tort Differ, 60 LAW & CONTEMP. PROBS. 35, 65 (1997)Google Scholar (explaining the economic nature of no fault cases).

110 Maxwell, J. Mehlman, Quality of Care and Health Reform: Complementary or Conflicting, 20 AM. J. L. & MED. 129, 140 (1994)Google Scholar.

111 State Watch, Kaiser Daily Health Policy Report, July 25, 2003, available at http://www.kaisernetwork.org/daily_reports/rep_hpolicy.cfm (July 25, 2003) (discussing the inability of the legislature to come to consensus).

112 David Royse, Doctors Upset Over Delayed Legislation, THE MIAMI HERALD, Aug. 2, 2003, at 3B.

113 James, supra note 89.

114 Id.

115 Id.

116 Id.

117 FLA. STA. Tit. XLV, § 766.1185 (2003)(“Bad faith actions.—In all actions for bad faith against a medical malpractice insurer relating to professional liability insurance coverage for medical negligence, and in determining whether the insurer could and should have settled the claim within the policy limits had it acted fairly and honestly towards its insured with due regard for her or his interest, whether under statute or common law: (1)(a) An insurer shall not be held in bad faith for failure to pay its policy limits if it tenders its policy limits and meets other reasonable conditions of settlement.”), available at http://www.flsenate.gov/Statutes/index.cfm?App_mode=Display_Statute&URL=Ch0766/titl0766.htm&StatuteYear=2003&Title=%2D%3E2003%2D%3EChapter%20766.

118 James, supra note 89.

119 According to the AMA, Virginia is one of twenty-six states that are currently showing “problematic signs”. AMA VOICE, supra note 8. The average highest premium increase in Virginia was 37% and 74% in 2001 and 2002, respectively. In addition to the no-fault program for birthrelated neurological injuries, Virginia passed the Medical Malpractice Act in 1976. Elizabeth, Anne Keith, Pulliam v. Coastal Emergency Services of Richmond, Inc.: Reconsidering the Standard of Review and Constitutionality of Virginia's Medical Malpractice Cap, 8 GEO. MASON L. REV. 587, 591-92 (2000)Google Scholar. A 1987 study reported Virginia had the third best loss ratio in the nation, but the health care providers still faced premium increases. The Virginia courts have consistently upheld the statutory damage caps, and its no-fault program has demonstrated some success. Despite these efforts, Virginia is currently experiencing significant increase in insurance premiums. This outcome suggests that Virginia's tort reform decreased the loss ratio, but again, not insurance premiums. Id. at 587, 594.

120 Mehlman, supra note 110, at 132.

121 Id.

122 Id. at 132-33.

123 GAO-03-836, supra note 33, at 25.

124 Id.

125 Id. at 16.

126 Id.

127 Id. at 16-17.

128 Id. at 17.

129 Id. at 16-9.

130 West Virginia's northern panhandle lost all neurosurgical services for two years during which time patients had to travel 60 miles for more for such care. On the other hand, West Virginia's physicians per capita rate increased slightly between 1997 and 2002. A Mississippi rural hospital lost five family practitioners in order to avoid a 65% hike in premiums. This forces expecting mothers to travel 65 miles to deliver (note these are family practitioners not OB/GYN physicians). Similar to West Virginia, Mississippi's physicians per capita rate did not change between 1997 and 2002. Id.

131 Hellinger & Encinosa, supra note 26, at 12.

132 Id.

133 Id. at 4-6.

134 Id. at 12.

135 Id. at 11-13.

136 Id. at 9 (this is especially important because the study shows that we must consider multiple factors instead of the mere existence of a capping statute when assessing the effect of malpractice tort reform statutes in different states).

137 Id.

138 Id. at 12.

139 ISSUE BACKGROUNDER, supra note 7, at 7.

140 Id. at 6.

141 GAO-03-836, supra note 33, at 25.

142 Id. Other studies have supported this position by finding that damage awards in states with caps were 23% lower than in states without such law. See Hellinger & Encinosa, supra note 26, at 2.

143 GAO-03-836, supra note 33, at 30.

144 Id. at 30-34.

145 Id. at 34.

146 Id. at 34-35. The GAO also suggested the practice of defensive medicine is largely unsupported by existing data. Id. at 40. The GAO points out that even though surveys indicated that a certain percentage of physicians are under malpractice pressure to alter their practice either by more referrals or more diagnostic tests, the overall response rate was too low to draw any broadly applicable conclusion. Id. at 26-27 (data drawn from 10% of the physicians surveyed should not be used to represent the rest 90% who did not respond because the GAO is concerned that those physicians who are affected by defensive medicine are the only ones responding to the survey thus skewing the data. But if the 10% response rate is the general average of all survey response rate, then the result could perhaps be viewed as random and thus indicative of the entire population.). The GAO further found that these surveys do not provide a good measurement system for an assessment of defensive medicine because they did not specify the frequency or the distribution of defensive behavior. Id., at 27 (questioning whether these survey results indicate defensive medicine is practiced daily or rarely, or defensive medicine is practiced on every patient or only certain types of patients). The GAO suggests that managed care is a mitigating factor to defensive medicine, and most defensive medicine studies are too specific to be extrapolated to the entire medical field. Id. at 28-29. The GAO used the recent DHHS report as an example. The DHHS report found a 5 to 9% saving for Medicare heart patients, and thus concluded that there is at least a 5% saving nation wide in curbing defensive medicine. Id. at 30. But the GAO believes the savings should be restricted to elderly patients receiving the treatment studied, and any inference beyond the DHHS data goes too far. Id. The AMA takes the position that while specific estimates of defensive medicine has not been scientifically derived, the savings are demonstrated by many studies. Id. at 40. The aggregate of all the defensive medicine practice studies definitely indicates cost saving opportunities; the AMA believes the number is in the tens of billions of dollars per year, while the GAO finds it difficult to assess the magnitude of the problem without a reliable measurement system. Id.

147 Id. at 37.

148 The complexity is legion. In 2002, the media has reported complete hospital shutdowns across the U.S., indicating national access to healthcare is on the brink. A suburban Philadelphia trauma center closed for thirteen days in late 2002; West Virginia's major Level I trauma center closed for one month in late 2002; Nevada's only Level I trauma center closed for eleven days in July 2002. Id. at 14-15. A close look at the causes of the shutdown reveals that at least in Pennsylvania, West Virginia, and Nevada, termination of services by orthopedic surgeons was the sole factor. Id. at 14-16. Even though OB/GYN physicians face one of the most severe rate increases, the GAO was able to attribute, at least in part, obstetrics unit closures to factors other than malpractice premiums. However, the GAO report did not discuss the total hospital shutdowns caused by orthopedic surgeons—only that the rate of orthopedic surgeries among Medicare enrollees has been increasing nationally. Id. at 18. This could raise questions about the severity and spread of the current malpractice crisis. If the crisis only affects one healthcare specialty, or if the crisis affects that particular specialty on a level different than the rest of the medical practices, then a sweeping tort reform may not address the specific problems orthopedic surgeons encounter.

149 Id. at 20.

150 Id. at 20, 38.

151 Id. at 38-41.

152 Id. at 38.

153 Id. at 38-39.

154 Id. at 40.

155 Id.

156 GAO-03-702, supra note 5, at 9.

157 Id. at 28.

158 Id. at 3.

159 Id.

160 Frank, A. Sloan, State Responses to the Malpractice Insurance “Crisis” of the 1970’s: An Empirical Assessment, 9 J. HEALTH POL. POL’Y & L. 629, 632-33 (1985)Google Scholar.

161 Id.

162 Id. at 643.

163 GAO-03-702, supra note 5, at 16.

164 Id. at 25.

165 Id.

166 Id. at 28.

167 Id. at 16.

168 Id.

169 Id. at 20.

170 Id. at 22.

171 ISSUE BACKGROUNDER, supra note 7, at 4.

172 The EPF reports a study for the disposition of malpractice claims in 2001 confirms this view – 61% of all claims are dropped or dismissed, and plaintiff's verdict accounts for only 1% of all claims. Id. at 8.

173 Id. at 2.

174 GAO-03-702, supra note 5, at 29-32.

175 Id.

176 Id. at 25.

177 Id. at 27.

178 Id. at 29.

179 Id. at 16.

180 Id. at 31.

181 Id.

182 Id. at 5.

183 Id. at 39.

184 Id. at 31.

185 Id. at 32.

186 See id. at 31.

187 Id. at 23.

188 Id.

189 GAO-03-836, supra note 33, at 37.

190 GAO-03-702, supra note 5, at 39.

191 Id. at 24.

192 See Maxwell, J. Mehlman, The Human Genome Project and the Courts: Gene Therapy and Beyond, 83 JUDICATURE 124 (1999)Google Scholar.

193 David, Studdert et al., Beyond Dead Reckoning: Measures of Medical Injury Burden, Malpractice Litigation, and Alternative Compensation Models from Utah and Colorado, 33 IND. L. REV. 1643, 1670 (2000)Google Scholar.

194 Of course, there are many other studies and efforts to answer this question. For example, a comprehensive study from 1989 attempted to assess the effect of the tort reform from the mid 70’s. The authors compiled national data from the National Association of Insurance Commissioners during 1975—1978 and conducted a statistical cause-and-effect analysis. Sloan et al., supra note 96, at 681. The study found that “capping” and reduction of statute of limitation reduced the liability payouts, but alternative dispute remedies affected the overhead of the healthcare system. Id. at 681-82. More specifically, the assessment of the tort reforms from the 70's found reducing the statute of limitations by a year lowered the mean delay to filing by one-third of a month, while having zero impact on liability payment amount; “capping” reduced the total liability payouts by 38 to 39 percent; a limited collateral resource rule reduced claim frequency; and permission of binding arbitration increased claim frequency. Id. at 674-79.

However, the effectiveness of the tort reform is likely dependent of the cause of the crisis. Yet the causes remain elusive. See, e.g., Michelle, Mello, The New Medical Malpractice Crisis, 328 NEW ENG. J. MED. 2281 (2003)Google Scholar. Therefore, it is difficult to assess the effectiveness of any tort reform efforts as they influence the root causes of the crisis and perception of crisis in different ways. It is even more difficult to assess the interaction between the factors caused by the tort reform for they are likely to be non-linear, such as the interaction (if any) between the propensity to file a claim and the lawyer/population ratio of a particular state. The multicollinearity of data can be difficult to measure and decouple.

Further, legislation limiting premium rates have produced inconclusive results at least with regard to premium effects. California passed Proposition 103 in 1988 to require a 20% rollback of all insurance premiums, and to grant rights to challenge any commercial insurance rate increase over 15%. Texas and Kentucky also passed laws to either reduce rates to a level approved by the State Department of Insurance, or to require approval prior to a rate increase. California seems to be the only state to enjoy the intended effect of decreasing premiums to stabilize the market costs.

195 GAO-03-702, supra note 5, at 23.

196 Id. at 39.

197 Id. at 24.

198 See, e.g., Mehlman, supra note 192; Studdert, supra note 193, at 1670.

199 See Bryan A. Liang, Promoting Patient Safety Through Reducing Medical Error: A Paradigm of Cooperation Between Patient, Physician, and Attorney, 24 S. ILL. U. L.J. 541, 542-43 (2000).

200 Id. at 542.

201 Because the nature of medical care is so complex, even when providers are working at a 99% level of proficiency—and medical personnel “are among the most careful professionals in our society”—this level is still less than industry, and even a 99.9% level of proficiency may not be enough in complex systems. See Lucian. L. Leape, Error in Medicine, 272 JAMA 1851, 1851 (1994).

202 See JAMES REASON, HUMAN ERROR (1990).

203 DANIEL E. MAURINO ET AL., BEYOND AVIATION HUMAN FACTORS 83 (1995).

204 See REASON, supra note 202.

205 See id. at 8.

206 See id. at 173.

207 Id.

208 See Leape, supra note 201, at 1854.

209 James, Reason, Human Error: Models and Management, 320 BRIT. MED. J. 768, 769 (2004)Google Scholar.

210 Id.

211 See REASON, supra note 202.

212 Id. at 769.

213 See, e.g., MAURINO ET AL., supra note 203; REASON, supra note 202; H. Clayton Foushee & Robert L. Helmreich, Group Interaction and Flight Crew Performance, in HUMAN FACTORS IN AVIATION (Earl L. Wiener & David C. Nagel, eds. 1988); John K. Lauber & Phyllis J. Kayten, Sleepiness, Circadian Dysrhythmia, and Fatigue in Transportation System Accidents, 11 SLEEP 503 (1988); Bryan, A. Liang, Error in Medicine: Legal Impediments to U.S. Reform, 24 J. HEALTH POL. POL’Y & L. 27 (1999)Google Scholar.

214 See, e.g., Leape, supra note 201, at 1851; Lucian, L. Leape et al., Promoting Patient Safety by Preventing Medical Error, 280 JAMA 1447 (1998)Google Scholar; Liang, supra note 199, at 542-543; Rebecca Voelker, ‘Treat Systems, Not Errors,’ Experts Say, 276 JAMA 1537 (1996).

The concept of “white spaces” is an industrial concept that is applicable to health care and illustrates some of the issues associated with complex systems and improving safety. All businesses use business processes to accomplish goals. Systems are collections of independent processes that form a unique pattern or purpose. “Systems thinking” is the catchy, but descriptive term used to describe efforts at improving process interdependencies within systems and avoid the gap between departments.

For example, say a company has several departments: product development, manufacturing, and marketing/sales (or in a hospital, a physician “department”, nursing “department”, and administrative “department”). Typically these departments operate rather independently from each other as a natural consequence of an entirely functional mindset. In other words, researchers research, marketers market, sellers sell and makers make (while physician practice medicine, nurse practice nursing, and administrators manage). Few if any ever really know the other's job or responsibilities (of course, one department usually has a perception of what other departments do, but that perception generally does not reflect reality). After functioning this way for a while, there is no incentive for departments to join and understand each other's function, since operations appear to continue without incident. This mentality is called “stove piping” and it inevitably results in “turf wars” when the functional lines get crossed. Humans respond to how they are measured – and anything outside the walls of one's own function is generally not considered necessary. With negative conditioning associated with potential turf war conflicts, humans are taught not to cross the functional line. Instead humans invest their energy into making their functional walls stronger and stronger. Hence, a form of “no man's land” develops between the functions and functional units/departments, i.e., white space; however this approach is exceedingly costly since valuable organizational resources must be expended to keep the walls in place while also maintaining and promoting silence and understanding between departments. Of course, that energy could be better served elsewhere, including improving safety.

Individual human beings are conditioned to think in discrete “function” ways, and consequently, the continuum of problem solving is therefore traditionally divided into discrete territories. The existence of white spaces is thus an inevitable product in an individual accountability system that focuses singly upon the space occupied in a single department. A shift in mindset from such linear methods to a process based, integrated, systematic approach is necessary in order to reduce errors. Indeed, even if all errors are eliminated from individual functions, those errors created by functional white space will remain to negatively affect system quality.

See PRICE PRITCHETT, MANAGING SIDEWAYS: A PROCESS-DRIVEN APPROACH FOR BUILDING THE CORPORATE ENERGY LEVEL AND BECOMING AN ALPHA COMPANY, (EPS Solutions 1999).

215 Bryan, A. Liang, The Adverse Event of Unaddressed Medical Error: Identifying and Filling the Holes in the Health-Care and Legal Systems, 29 J. L. MED. & ETHICS 346, 347 (2001)Google Scholar.

216 See Liang, supra note 213, at 28-30.

217 See, e.g., REASON, supra note 202; Leape, supra note 201; Leape et al., supra note 214.

218 See Liang, supra note 199, at 545.

219 See J. Duncan Moore, JCAHO Urges ‘Do Tell’ In Sentinel Event Fight: Aviation's Lesson— Learn From Experience, MOD. HEALTHCARE, Mar. 2, 1998, at 60 (quoting Lucian Leape).

220 See Liang, supra note 213, at 39; D.A. Lucas, Organizational Aspects of Near Miss Reporting, in NEAR MISS REPORTING AS A SAFETY TOOL 134 (Tjerk W. van der Schaaf et al. eds., 1991).

221 See John, F. Christensen et al., The Heart of Darkness: The Impact Of Perceived Mistakes On Physicians, 7 J. GEN. INTERN. MED. 424 (1992)Google Scholar; David Hilfiker, Facing Our Mistakes, 310 NEW ENGL. J. MED. 118 (1984); Leape, supra note 201, at 1851-52; Liang, supra note 199, at 545; Albert, W. Wu et al., Do House Officers Learn From Their Mistakes?, 265 JAMA 2089 (1991)Google Scholar.

222 See Liang, supra note 215, at 348.

223 Note, however, that anesthesia is the exception to this lack of systems focus. Through simulation and systems analysis, anesthesia has reduced errors and associated injuries by at least an order of magnitude. See, e.g., Jeffrey, B. Cooper et al., An Analysis of Major Errors and Equipment Failures in Anesthesia Management: Considerations for Prevention and Detection, 60 ANESTHESIOLOGY 34 (1984)Google Scholar; David, J. Cullen, et al., Effect of Pulse Oximetry, Age, and ASA Physical Status on the Frequency of Patients Admitted Unexpectedly to a Postoperative Care Unit, 74 ANESTH. ANALG. 181 (1992)Google Scholar; David, M. Gaba, Human Error in Anesthetic Mishaps, 27 INT. ANESTHESIOL. CLIN. 137 (1989)Google Scholar; David M. Gaba & Abe DeAnda, A Comprehensive Anesthesia Simulation Environment: Recreating the Operating Room for Research and Training, 69 ANESTHESIOLOGY 387 (1988).

224 See Liang, supra note 215, at 348.

225 Id.

226 Bryan, A. Liang, Symposium Article: The Adverse Event of Unaddressed Medical Error: Identifying and Filling the Holes in the Health-Care and Legal Systems, 29 J.L. MED. & ETHICS 346, 348 (2001)Google Scholar.

227 Id.

228 See Bryan, A. Liang, The Effectiveness of Physician Risk Management: Potential Problems for Patient Safety, 5 RISK DECISION & POLICY 183 (2000)Google Scholar.

229 Id.

230 See id. at 186; Liang, supra note 199, at 546-47.

231 The JCAHO has updated the SEP several times since its creation in 1995. See JCAHO, Facts About the Sentinel Event Policy, available at http://www.jcaho.org/sentinel/se_pp.htm.

232 Although there are claims by representatives of the JCAHO that adherence to the SEP is merely “voluntary”, accreditation, and thus the ability to provide services to at least Medicare and Medicaid patients, hinges upon adherence to the policy. See, e.g., Bryan, A. Liang, Comment: Other People's Money: A Reply to the Joint Commission, 33 J. HEALTH L. 657 (2000)Google Scholar.

233 See JCAHO, supra note 231.

234 JCAHO, Sentinel Event Policy and Procedures Revised: July 2002, at http://www.jcaho.org/accredited+organizations/ambulatory+care/sentinel+events/se_pp.htm.

235 See JCAHO, supra note 231.

236 See infra notes 239-266 and accompanying text (discussing legal failures and holes that prevent medical error and patient safety activities).

237 See Bryan, A. Liang, Risks of Reporting Sentinel Events, 19 HEALTH AFFAIRS 112 (2000)Google Scholar; Liang, supra note 232.

238 See Liang, supra note 199, at 549-50. There may also be a significant conflict of interest in the SEP itself. JCAHO not only decides the acceptability of the root cause analysis and, critically, accreditation status, but also offers “consultant” services to perform this analysis. This situation provides highly difficult decisions for providers subject to the SEP. See id. at 550; Liang, supra note 237. Note, however, that because of this conflict of interest, JCAHO surveyors in the future may not both act as surveyors and consultants. However, it is still of great concern to front line providers that safety rhetoric discussed by JCAHO leaders may not be applied by individual surveyors who are accustomed to traditional shame and blame methods when surveying health care facilities.

In addition, since July 2001, JCAHO requires under its hospital accreditation standards for physicians to disclose “unanticipated outcomes” to patients, which is seen to require physicians to “tell patients when they received substandard care.” Ed Lovern, JCAHO's New Tell-All; Standards Require that Patients Know About Below-Par Care, MODERN HEALTHCARE, Jan. 1, 2001, at 2 available at 2001 WL 9418041; See JCAHO, Revisions to Joint Commission Standards in Support of Patient Safety and Medical/Health Care Error Reduction, available at http://jcprdw1.jcaho.org/standard/fr_ptsafety.html. Providers have expressed concerns regarding provider liability for this new policy: e.g., every admission has unanticipated outcomes, the standard will create awkwardness between hospitals and medical staffs, and “the hospital, by definition, is now intruding into the patient-physician relationship if there is a [JCAHO] documentation process required” for these disclosures. Id.

239 See BRYAN A. LIANG, HEALTH LAW & POLICY: A SURVIVAL GUIDE TO MEDICOLEGAL ISSUES FOR PRACTITIONERS ch.2 (2000) [hereinafter LIANG, HEALTH LAW & POLICY]; see also Bryan, A. Liang, Medical Malpractice: Do Physicians Have Knowledge of Legal Standards and Assess Cases as Juries Do?, 3 U. CHI. L. SCHOOL ROUNDTABLE 59, 59-60 (1996)Google Scholar (describing negligence rule as standard economic incentive theory) [hereinafter Liang, Medical Malpratice]; Bryan, A. Liang, Assessing Medical Malpractice Jury Verdicts: A Case Study of an Anesthesiology Department, 7 CORNELL J.L. & PUB. POL’Y 121, 121-123 (1997)Google Scholar (describing malpractice tort system as a possible efficient deterrence structure under standard theory and possible effective but not efficient deterrence structure under alternate theory) [hereinafter Liang, Assessing Medical Malpractice Jury Verdicts].

240 See LIANG, HEALTH LAW & POLICY, supra note 239, at 15.

241 Id.

242 Id. at 17.

243 Bryan, A. Liang, The Adverse Event of Unaddressed Medical Error: Identifying and Filling the Holes in the Health-Care and Legal Systems, 29 J. LAW MED. & ETHICS 346, 349 (2001)Google Scholar.

244 See LIANG, HEALTH LAW & POLICY, supra note 239, at 15. As applied in practice, see, e.g., Bryan, A. Liang, A Case of Resident Malpractice Administering Spinal Anesthesia, 9 J. CLIN. ANES. 341 (1997)Google Scholar; Bryan, A. Liang, Blood, Bone, and Dura: Anesthesia Responsibility and Pediatric Neurosurgery, 9 J. CLIN. ANES. 597 (1997)Google Scholar; Bryan A. Liang, Efforts at Intubation: Cervical Injury in an Emergency Circumstance? 11 J. CLIN. ANES. 349 (1999); Bryan A. Liang, Legal Issues in Transfusing a Jehovah's Witness Patient Following Cesarean Section, 7 J. CLIN. ANES. 522 (1995).

245 See LIANG, HEALTH LAW & POLICY, supra note 239.

246 See Liang, supra note 243.

247 See Liang, supra note 199, at 551; Liang, Assessing Medical Malpractice Jury Verdicts, supra note 239; Liang, Medical Malpractice, supra note 239.

248 See Liang, Assessing Medical Malpractice Jury Verdicts, supra note 239; Liang, Medical Malpractice, supra note 239.

249 See, e.g., Liang, Assessing Medical Malpractice Jury Verdicts, supra note 239 (anesthesiologists); Liang, Medical Malpractice, supra note 239 (radiologists); Liang, supra note 199 (internal medicine/family practice physicians).

250 See Liang, supra note 199, at 551; Liang, Assessing Medical Malpractice Jury Verdicts, supra note 239, at 131; Liang, Medical Malpractice, supra note 239, at 65.

251 See Liang, supra note 199; Liang, Assessing Medical Malpractice Jury Verdicts, supra note 239; Liang, Medical Malpractice, supra note 239.

252 See Liang, supra note 213, at 33.

253 See Liang, supra note 228.

254 See Liang, supra note 199; Liang, Assessing Medical Malpractice Jury Verdicts, supra note 239; Liang, Medical Malpractice, supra note 239; see also Troven, A. Brennan et al., Relation Between Negligent Adverse Events and the Outcomes of Medical Malpractice Litigation, 335 NEW ENG. J. MED. 1963 (1996)Google Scholar(malpractice payments related to severity of injury, not negligence as defined by physician review); Frederick, W. Cheney et al., Standard of Care and Anesthesia Liability, 261 JAMA 1599 (1989)Google Scholar (more than 40% of patients receiving appropriate care assessed by neutral anesthesiologists received malpractice payments); Steven, D. Edbril & Robert, S. Lagasse, The Relationship Between Malpractice Litigation and Human Errors, 91 ANESTHESIOLOGY 848 (1999)Google Scholar (reporting no relationship between care deemed below the standard of care and medical malpractice suits).

255 See Liang, supra note 199; Liang, Assessing Medical Malpractice Jury Verdicts, supra note 239; Liang, Medical Malpractice, supra note 239; Bryan, A. Liang, Clinical Assessment of Malpractice Case Scenarios in an Anesthesiology Department, 11 J. CLIN. ANES. 267, 271 (1999)Google Scholar.

256 Brennan et al., supra note 261; Cheney et al., supra note 261; Edbril & Lagasse, supra note 261; Liang, Assessing Medical Malpractice Jury Verdicts, supra note 239; Liang, Medical Malpractice, supra note 239; Liang, supra note 199.

257 See, e.g., Liang, Clinical Assessment, supra note 255 (anesthesiology: 30-46% disagreement); Liang, Medical Malpractice, supra note 239 (radiology: 21-50% disagreement); Bryan A. Liang, Physician Assessment of Jury Verdict Case Scenarios: Does the Legal System Promote An Effective Deterrence Structure and Patient Safety? (unpublished manuscript, on file with author) (internal medicine/family practice: 20-50% disagreement). As well, it has been reported that physician peer review identification of care that is deemed lower than the prevailing standard is independent of cases that are at risk of or adjudicated in the malpractice system. See Edbril & Lagasse, supra note 254; see also David, M. Studdert et al., Negligent Care and Malpractice Claiming Behavior in Utah and Colorado, 38 MED. CARE 250 (2000)Google Scholar (noting when a physician is sued, a high probability exists it is for non-negligent care).

258 See Liang, supra note 228; Bryan A. Liang, Layperson and Physician Perceptions of the Malpractice System: Implications for Patient Safety, 57 SOC. SCI. & MED. 147, 151 (2003).

259 See Liang, Assessing Medical Malpractice Jury Verdicts, supra note 239; Liang, Medical Malpractice, supra note 239; Bryan A. Liang, Layperson Assessment of Malpractice Case Scenarios: Comparison with Physician Evaluations (unpublished manuscript on file with author).

260 See Liang, Assessing Medical Malpractice Jury Verdicts, supra note 239.

261 See id.; Liang, Medical Malpractice, supra note 239; Bryan A. Liang, Layperson Assessment of Malpractice Case Scenarios: Comparison with Physician Evaluations, supra note 259. Some studies suggest that the agents of the legal system evaluate cases appropriately as defined by ex post physician assessment. See NEIL VIDMAR, MEDICAL MALPRACTICE AND THE AMERICAN JURY (1995). However, these studies relied on only one or two physician reviewers limited to a single medical specialty, whereas the studies cited at the outset of this note utilized between 11 and 138 physician reviewers for each case in three different specialties.

262 This conclusion is exacerbated by significant hindsight bias and the potential that experts reviewing malpractice cases assess physician activities using subjective standards. See Bryan A. Liang & David J. Cullen, The Legal System and Patient Safety: Charting a Divergent Course [Editorial], 91 ANESTHESIOLOGY 609 (1999); Liang, Assessing Medical Malpractice Jury Verdicts, supra note 239; Liang, supra note 228.

263 See Liang, Assessing Medical Malpractice Jury Verdicts, supra note 239, at 144.

264 Id. at 145.

265 See, e.g., id.; Liang, supra note 258; Liang, supra note 259; Liang, supra note 213; Liang & Cullen, supra note 262.

266 See, e.g., Liang, supra note 258; Liang, supra note 259.

267 Bryan, A. Liang, A System of Medical Error Disclosure, 11 QUAL. SAFETY HEALTH CARE 64, 64-68 (2002)Google Scholar.

268 For example, although error disclosure should be “objective”, reflecting systems concepts, it should occur to allow patients to see the individual physician is “remorseful.” Philip, C. Hebert et al. Bioethics for Clinicians: 23. Disclosure of Medical Error, 164 CAN. MED. ASSN. J. 509 (2001)Google Scholar. Individual providers should be held “accountable”: “Healthcare is not a science. But, this does not excuse our system of not holding the [individual] healthcare provider accountable to errors.” PULSEAmerica.org, Persons United Limiting Substandards and Errors in Health Care, at http://www.pulseamerica.org (April 16, 2002). Here, accountability appears to be replacing the concept of moral blameworthiness but means the same thing. Note also that organized medicine retains such an approach; although medical errors “should be understood to refer to errors committed within a health care environment”, physicians should disclose errors “even if it places the physician at risk of humiliation, blame, or legal liability.” Paul Barach, personal communication, 2001.

269 See Leape, supra note 201, at 1851-57.

270 See Liang, supra note 267; see also Liang, supra note 199.

271 It should be emphasized that the inclusion of patients as partners in the health delivery system includes family members, particularly because they may be extremely effective, knowledgeable, and motivated observers of care. In some instances, a patient's family maybe in an even better position to observe the system of care delivery and potential sources of system weakness than the actual patient.

272 Of course, patients may be debilitated and not be able to effectively act as a team member. However, they should be encouraged to take as active of a role as they can. In addition, within this category should be the patient's family; they maybe in an even better position to observe the system of care delivery and potential sources of system weakness.

273 See Liang, supra note 267.

274 See PRITCHETT, supra note 214.

275 Steve, S. Kraman & Ginny, Hamm, Risk Management: Extreme Honesty May Be the Best Policy, 131 ANNALS OF INTERNAL MED. 963 (1999)Google Scholar.

276 Bryan A. Liang, Error Disclosure for Quality Improvement: Authenticating a Team of Patients and Providers to Promote Patient Safety, in PROMOTING PATIENT SAFETY: AN ETHICAL BASIS FOR POLICY DELIBERATION (Virginia A. Sharpe, ed., forthcoming 2004).

277 Id.

278 Although there are extant medical ethics perspectives that indicate providers, particularly physicians, should take all responsibility for errors and related injuries, this perspective does not recognize the systems nature of error and outcomes. See Liang, supra note 267. The idea of the provider alone “taking responsibility” represents a move back to traditional, individually-oriented shame and blame approaches and flies in the face of the systems approach to improve quality and outcomes in the health delivery system.

279 Near misses represent a tremendous resource in learning about errors without the untoward effects and reluctance of some to discuss errors that lead to injury. Paul, Barach & Steven, D. Small, How the NHS Can Improve Safety and Learning: By Learning Free Lessons from Near Misses, 320 BRIT. MED. J. 1683, 1684 (2000)Google Scholar; Liang, supra note 237.

280 See Liang, supra note 267.

281 See Liang, supra note 199.

282 See id.; see also Virginia, A. Sharpe, Behind Closed Doors: Accountability and Responsibility in Patient Care, 25 J. MED. PHIL. 28 (2000)Google Scholar.

283 Neville Moray, Error Reduction as a Systems Problem, in HUMAN ERROR IN MEDICINE 67, 67 (Marilyn S. Bogner ed., 1994); see also REASON, supra note 202.

284 See Liang, supra note 199.

285 Liang, supra note 243, at 347.

286 AMERICAN MEDICAL ASSOCIATION, COUNCIL ON ETHICAL AND JUDICIAL AFFAIRS, CODE OF MEDICAL ETHICS: CURRENT OPINIONS WITH ANNOTATIONS (150th Anniversary ed. 1997); AMERICAN COLLEGE OF PHYSICIANS, Ethics Manual: Fourth Edition, 128 ANNALS OF INTERNAL MED. 576, 579 (1998); Philip, C. Hebert, Patients Must Be Told of Unintended Injuries During Treatment, 318 BRIT. MED. J. 1762 (1999); Kraman & Hamm, supra note 275; Fred Rosner et al., Disclosure and Prevention of Medical Errors, 160 ARCHIVES OF INTERNAL MED. 2089, 2090 (2000)Google Scholar; NATIONAL PATIENT SAFETY FOUNDATION, Talking to Patients about Health Care Injury: Statement of Principle, at http://www.npsf.org/statement.html (Nov. 14, 2003).

287 See Liang, supra note 199.

288 See Liang, supra note 267.

289 See Sharpe, supra note 282.

290 Liang, supra note 267, at 65.

291 Id.

292 There are legal issues that may preclude such an approach without reform. Currently, much of this information will not be covered by peer review/quality assurance privilege; see Bryan, A. Liang & Steve, D. Small, Communicating About Care: Addressing Federal-State Issues in Peer Review and Mediation to Promote Patient Safety, 3 HOUST. J. HEALTH L. & POL’Y 219, 229 (2003)Google Scholar. As well, some of this safety information use and/or disclosure may result in violations of the medical privacy provisions of the Health Insurance Portability and Accountability Act of 1996 (HIPAA); see Liang, supra note 285. One way to address this issue would be through use of Patient Safety Organizations under S. 720, the Patient Safety and Quality Improvement Act of 2003, which could collect this data for safety use, allow for providers to report such data, and maintain confidentiality of such provisions, hence creating a federal peer review/quality assurance privilege; as well, defining collection and analysis of such information as public health information and/or health care operations will address HIPAA medical privacy concerns so as to allow collection and use of this information for safety purposes without mandating the extensive and expensive HIPAA authorization requirements. Bryan A. Liang, HIPAA and the Public Health: Outlining the Boundaries, Houston Metropolitan Medical Response System First Responder Conference, Department of Health and Human Services, Department of Public Health, November 3, 2003.

293 See Chantal, Brazeau, Disclosing the Truth About a Medical Error, 60 AM. FAM. PHYSICIAN 1013, 1013-1014 (1999)Google Scholar; John, F. Christensen et al., The Heart of Darkness: The Impact of Perceived Mistakes on Physicians, 7 J. GEN. INTERNAL MED. 424 (1992)Google Scholar; Lucian, L. Leape, et al., A Conversation on Medical Injury, 114 PUB. HEALTH REP. 302 (1999)Google Scholar; Albert, W. Wu, A Major Medical Error, 63 AM. FAM. PHYSICIAN 985, 986 (2001)Google Scholar; Albert, W. Wu et al., How House Officers Cope with Their Mistakes, 159 W. J. MED. 565 (1993)Google Scholar.

294 Liang, supra note 267, at 65.

295 See JUDY ALLEN & SUSAN A. BROCK, HEALTH CARE COMMUNICATION USING PERSONALITY TYPE: PATIENTS ARE DIFFERENT! (2000); ROBERT BUCKMAN & YVONNE KASON, HOW TO BREAK BAD NEWS: A GUIDE FOR HEALTH CARE PROFESSIONALS (1992); Enrico, Coiera & Vanessa, Tombs, Communication Behaviours in a Hospital Setting: An Observational Study, 316 BRIT. MED. J. 673 (1998)Google Scholar; Adrian, Edwards et al., General Practice Registrar Responses to Use of Different Risk Communication Tools in Simulated Consultations: A Focus Group Study, 319 BRIT. MED. J. 749 (1999)Google Scholar; Frank, V. Lefevre et al., A Study of Physician Training Programs in Risk Management and Communication Skills for Malpractice Prevention, 28 J. L. MED. & ETHICS 258 (2000)Google Scholar; Paul, Little et al., Observational Study of Effect of Patient Centredness and Positive Approach on Outcomes of General Practice Consultations, 323 BRIT. MED. J. 908 (2001)Google Scholar; Angela, E. Rogers et al., Knowledge and Communication Difficulties for Patients with Chronic Heart Failure: Qualitative Study, 321 BRIT. MED. J. 605 (2001)Google Scholar.

296 See generally ROBERT HODGE & GUNTHER KRESS, LANGUAGE AS IDEOLOGY (1993); GEORGE LAKOFF & MARK JOHNSON, METAPHORS WE LIVE BY (1980); DEBORAH TANNEN, TALKING VOICES: REPETITION DIALOGUE AND IMAGERY IN CONVERSATIONAL DISCOURSE (1986).

297 Richard, Fitzgerald, Error in Radiology, 56 CLINICAL RADIOLOGY 938, 943 (2001)Google Scholar; John, C. Flanagan The Critical Incident Technique, 51(4) PSYCHOL. BULL. 327 (1954)Google Scholar; Robert J. Luttman, Next Generation Quality, Part 2: Balanced Scorecards and Organizational Improvement, 19(2) TOPICS IN HEALTH INFO. MGMT 22, 23 (1998); Eugene, C. Nelson et al., Using Data to Improve Medical Practice by Measuring Processes and Outcomes of Care, 26 JOINT COMM’N J. QUALITY IMPROVEMENT 667, 682 (2000)Google Scholar; Norman, Weinberg, Using Performance Measures to Identify Plans of Action to Improve Care, 27 JOINT COMM’N J. OF QUALITY IMPROVEMENT 683, 684 (2001)Google Scholar; Richard P. Wenzel, Beyond Total Quality Management, 1(1) CLINICAL PERFORMANCE IN QUALITY HEALTH CARE, 43 (1993).

298 Gerald, B. Hickson et al., Factors That Promoted Families to File Medical Malpractice Claims Following Prenatal Injuries, 267 JAMA 1359 (1992)Google Scholar.

299 Such as when patients are being abused or there are suspicions of patient abuse by family members which may be exacerbated by disclosure, or when psychological factors make disclosure to the patient harmful.

300 Such as police investigations.

301 29A AM. JUR. 2D Evidence § 815 (2000).

302 Protections of this information are also subject to peer review/quality assurance and HIPAA issues. See supra note 292 (describing limits of peer review/quality assurance privilege, HIPAA, and potential solutions).

303 See Hickson et al., supra note 298; Gerald, B. Hickson et al., Obstetricians’ Prior Malpractice Experience and Patients’ Satisfaction With Care, 272 JAMA 1583 (1994)Google Scholar; Robyn, S. Shapiro, et al., A Survey of Sued and Nonsued Physicians and Suing Patients, 149 ARCHIVES OF INTERNAL MED. 2190 (1989)Google Scholar.

304 Bryan, A. Liang, The Perils of Law and Medicine: Avoiding Litigation to Promote Patient Safety, 19(4) PREVENTIVE L. REP. 10 (2001)Google Scholar; Kelly, K. Meadows, Resolving Medical Malpractice Disputes in Massachusetts: Statutory and Judicial Alternatives in Alternative Dispute Resolution, 4 SUFFOLK J. TRIAL & APP. ADVOC. 165 (1999)Google Scholar; Thomas, B. Metzloff, Alternative Dispute Resolution Strategies in Medical Malpractice, 9 ALASKA L. REV. 429 (1992)Google Scholar; Thomas, B. Metzloff, Resolving Medical Malpractice Disputes: Imaging the Jury's Shadow, 54 LAW & CONTEMP. PROBS. 43 (1991)Google Scholar.

305 Wendy, Levinson et al., Physician-Patient Communication: The Relationship With Malpractice Claims Among Primary Care Physicians and Surgeons, 277 JAMA 553 (1997)Google Scholar.

306 Id.

307 BRYAN A. LIANG, Alternative Dispute Resolution, in BRYAN A. LIANG, HEALTH LAW & POLICY: A SURVIVAL GUIDE TO MEDICOLEGAL ISSUES FOR PRACTITIONERS 257, 257 (2000); see also Liang, supra note 304.

308 Howard, B. Beckman et al., The Doctor-Patient Relationship and Malpractice: Lessons from Plaintiff Depositions, 154 ARCHIVES OF INTERNAL MEDICINE 1365, 1365 (1994)Google Scholar; G.W., Lester & S.G., Smith, Listening and Talking to Patients: A Remedy for Malpractice Suits?, 158 W. J. MED 268, 272 (1993)Google Scholar; Charles, Vincent et al., Why Do People Sue Doctors? A Study of Patients and Relatives Taking Legal Action, 343 LANCET 1609, 1609 (1994)Google Scholar.

309 Lester & Smith, supra note 308.

310 Liang, supra note 307.

311 Id.

312 See Edward A. Dauer & David W. Becker, Conflict Management in Managed Care, in EDWARD A. DAUER ET AL., HEALTH CARE DISPUTE RESOLUTION MANUAL: TECHNIQUES FOR AVOIDING LITIGATION (2000).

313 Note that such apology should be provided only when appropriate, rather than as a placating measure. See Katherine, Burke, Doctors Say Some Hospitals Too Ready To Apologise, 324 BRIT MED. J. 256, 256 (2002)Google Scholar (quoting doctor denouncing some hospitals’ attitude as “smacking of ‘sophistry’”); see also Jonathan, R. Cohen, Apology and Organizations: Exploring an Example from Medical Practice, 27 FORDHAM URB. L.J. 1447 (2000)Google Scholar.

314 29A AM. JUR. 2D Evidence § 815 (2000); Graham, Ness & Christopher, Cordess, Letters: Promoting Patient Safety in Primary Care: Honesty and Openness May Not Be the Best Policy, 324 BRIT. MED. J. 109, 109 (2002)Google Scholar.

315 Deese v. Carroll City County Hosp. 416 S.E. 2d 127 (Ga. 1992); Phinney v. Vinson, 605 A.2d 849 (Vt. 1992); Senesac v. Assoc. in Obstetrics & Gynecology, 449 A.2d 900 (Vt. 1982); CAL. EVID. CODE § 1160 (West 2000); MASS. GEN. LAWS ch. 233, § 23D (2000); TEX. CIV. PRAC. & REM. CODE ANN. § 18.061 (Vernon 2000); Byron H. Demorest, When It's Okay to Say You Are Sorry, SURV. OPHTHALMOLOGY 2001).