delayed diagnosis, 5.2% an alleged misdiagnosis, and the remainder were distributed among a large number of other types of allegations. Among surgery-related claims, the leading types of allegations were improper performance (47.5%), improper technique (7.7%), failure to recognize a surgical complication (6.6%), retained foreign object (5.1%), improper management (4.3%), and unnecessary procedure (3.4%). Among treatment-related claims, the most common allegation types were improper management (15.1%), improper performance (13.4%), failure to treat (12.4%), delayed treatment (11.5%), failure to diagnose (4.5%), failure to recognize a complication (3.6%), and failure to order an appropriate test (3.6%). 2.2.1.2. Trends over Time The median payment dropped from $220,114 in 2008 to $214,312 in 2009 and continued to drop thereafter, to $197,096 in 2014, but increased again in 2015 to $225,000 (Exhibits 5,6). Mean payments displayed a similar pattern, declining from $426,366 in 2005 to a low of $368,702 in 2011 before rising to $404,627 in 2015 (Exhibit 5). Time was not a significant predictor of indemnity payment amounts in Cuzick’s nonparametric test for trend (z=-1.65, p=0.099) or in a simple regression of the natural log of payments on time (β=-0.0017, s.e.=0.0013, t=-1.30, p=0.19). 16 Exhibit 4. Sample Characteristics: Paid Malpractice Claims Involving MDs and DOs Reported to the NPDB, 2005-2015 (n=116,965) n % n % Year reported Medical malpractice law and insurance have been a very visible focus of attention around the country and in Washington, DC in recent years and on a cyclical basis for decades. In some states, the problems associated with medical malpractice are called a crisis, with health care providers concerned about spikes in malpractice premiums and reductions in the availability of coverage, especially for specialists who treat high-risk patients. Some believe the tort system is at fault, blaming excessive litigation, unreasonably high settlements and judgments, and the encouragement of defensive medical practices; others blame the medical malpractice insurance market. Numerous states have enacted legislation to address various aspects of the malpractice issue. And the Bush Administration has supported legislation (introduced but not as yet enacted) to reduce the amount of litigation and restrict damage awards in medical malpractice lawsuits. This paper provides a brief overview of the issues surrounding medical malpractice law. It begins by briefly describing how medical malpractice law works. Following sections discuss the legal changes that states have made over the past thirty years in response to periodic concerns about rising medical malpractice costs, some newer proposals for changing medical malpractice law, and trend data looking at changes in the number of claims and average and total claims costs. Medical Malpractice Law and Lawsuits Medical malpractice law in this country traditionally has been under the authority of the states, not the federal government. And, unlike many other areas of the law, the framework and legal rules governing malpractice actions were, prior to the last thirty years, largely established through decisions in lawsuits in state courts rather than through statutes enacted by state legislatures. Legal rules established by the courts generally are referred to as “common law.” Because the legal precedents that established the case law in one state have no weight in any other state, the rules for handling medical 1 malpractice cases varied from state to state, although many of the principles were similar. Medical malpractice law traces its roots back to 19th Century English common law.1 The law that developed concerning medical malpractice is part of the more general body of law dealing with injuries to people or property, known as “tort law.” Medical malpractice cases are an example of one particular type of tort, the tort known as “negligence.” The concept of negligence is that people should be reasonably careful in what they do, and, if they are not, they should be held responsible for the injuries that can be reasonably foreseen as resulting from their negligent conduct. To win a negligence lawsuit involving medical care, the injured person needs to prove that they received substandard medical care that caused their injury. This involves a number of steps. First, a person who is injured during treatment must determine whether or not they have been harmed by inadequate care. Physicians and other providers generally are not legally required to tell their patients that they were hurt by medical care that was not as good as it should have been, so patients who suffer adverse outcomes, or their families, usually must consult with others to make this determination.2 Patients who were under the care of multiple health care providers need to determine which, if any, of these providers contributed to their injury, if it is possible to do so. A malpractice lawsuit must be brought within a legally prescribed period, called a “statute of limitation.” In some states, the period for filing a suit starts when the person is injured, while in other states it does not start until the person knows or reasonably should have known that they had been injured. 1 See Speiser, Stuart M., et al., American Law of Torts, Vol. 4, Sec. 15.10 (West, 1987). 2 While