looking at the affordability of malpractice coverage. Malpractice insurance companies need to have sufficient reserves to cover potential lawsuits, and the longer the period of time for possible cases to arise, the greater the outstanding liability that insurers have to be prepared for. So, prolonged uncertainty about whether or not a patient will sue for malpractice affects the premiums that malpractice insurers charge. Many states have shortened the amount of time someone has to bring a lawsuit. Some of the new laws start the time clock from the moment an injury occurred whether it is apparent at that point or not, while others don’t impose a time limit until people have had a reasonable period to discover their injury. Nebraska, for example, requires that a plaintiff bring an action within two years of the act giving rise to the injury, or within one year after the injury should reasonably have been discovered.16 A different and more limiting variant is an Illinois state law that requires that an action be brought within two years of the discovery of an injury, but no later than four years after the negligent act.17 Some states extend the limitation periods in cases of injuries to young children or for injuries involving foreign objects or concealment by the defendant.18 Newer Proposals for Statutory Reforms of Malpractice Litigation In addition to the tort law changes discussed above, several more recent proposals have been made at the state or national level with potential implications for patients and providers. Laws have been enacted in a few states in one of these newer areas, while others have only been discussed in academic journals. 16 Nebraska Revised Statutes §25.222. 17 735 Ill. Comp. Statutes § 5/13-212(a). 18 See, for example, 735 Ill. Comp. Statutes § 5/13-215, which extends the time for bringing an action in cases of fraudulent concealment. 13 Patient Compensation Funds. A variation on “caps” on the size of awards has been to limit the liability of individual physicians, while providing for additional payments to injured patients from sources other than the physician or the physician’s malpractice insurance carrier. A number of the states have established Patient Compensation Funds or state-operated malpractice insurance pools. Regardless of the size of an award against them, physicians generally are responsible for only a certain amount of damages. The rest of the award comes from the Patient Compensation Fund. This helps physicians by limiting their individual financial exposure and the amount of liability insurance they have to buy. In South Carolina, for example, the fund will pay amounts over $200,000 per incident or $600,000 per year.19 States have taken different approaches to subsidizing the funds, including surcharges on physicians and general revenues. These funds may co-exist in a given state with caps on the size of awards. Aligning Malpractice Law and Patient Safety Concerns. An emerging issue is the perceived conflict between the medical malpractice system and developing efforts to improve the quality of care and patient safety.20 A series of major reports from the Institute of Medicine and others have pointed out serious deficiencies in the quality of medical care delivered in this country, with high rates of medical error causing harm or death. These studies and similar ones have generated interest in systematic changes in the way medical care is delivered that would minimize the risks to patients and improve overall quality. Proponents of these changes believe that most injuries to patients and defects in quality are not the fault of individual acts of negligence, but instead result from the failure to have adequate systems in place to prevent inevitable human error from creating harm. They argue that medical malpractice, which is built on the concept that someone was careless and should be held accountable, is a barrier to creating systems of oversight that reward, rather than penalize, open recognition of errors. 19 South Carolina Code § 38-79-420. 20 Mello, Michelle M. Malpractice Liability and Medical Error Prevention: Strange Bedfellows? Paper prepared for the Council on Health Economics and Policy conference on Medical Malpractice in Crisis: Health Policy Options, March 2003. 14 These discussions have led to scholarly reports that suggest reforms that link tort law changes to systematic improvements in quality assurance and patient safety. One idea that has been put forward would link the benefits of tort reforms, such as caps on medical malpractice actions, to physician participation in error reduction efforts, such as adverse event reporting. A more far-reaching approach would eliminate the fault-based system of medical malpractice and replace it with a no-fault system that compensates injured patients for injuries that result from “preventable” errors. Although determining what may have been “preventable” may appear to retain a notion of negligence, the concept is consistent with the principle that most errors are system-based rather than attributable to individuals. While discussed widely in scholarly journals, the no-fault approach has yet to be adopted by any state. In part, this stems from concerns that systematic approaches to error reduction would be shielded from possible discovery and not available to be used in malpractice cases, thereby curtailing patient rights without actually leading to effective