physicians are not legally compelled to disclose malpractice to their patients, the American Medical Association code of ethics (8.12) requires physicians to inform patients of the facts concerning mistakes or judgments that resulted in significant medical complications. A 2001 standard of the Joint Commission on the Accreditation of Health Care Organizations, RI 1.2.2, requires similar disclosure on the part of hospitals. 2 Once a person brings a malpractice lawsuit, the person (called the “plaintiff”) must show that they were actually under the care of the physician (or other provider) they are suing -- in other words, that they had established a physician-patient relationship. The concept here is that physicians (or other providers) owe a duty to their patients to use reasonable care and diligence in their treatment, but do not have any duty to care for members of the general public other than their own patients. The next requirement is the heart of a negligence lawsuit: the plaintiff must show that the physician did not provide medical care that met appropriate standards. The standards of care that physicians must meet have changed substantially over time. In earlier cases, doctors were only required to perform as well as other doctors practicing in their home community. More modern cases have moved toward holding physicians to a national standard for physicians practicing under circumstances similar to their own. For example, specialists must practice medicine as well as the average specialist in the same field, no matter where they are located. Even if the physician is shown to have provided substandard care, the plaintiff still must prove that the substandard care caused their injury. In some cases this is not difficult, such as when surgery is performed on the wrong body part. In other cases, showing causation can be quite problematic, such as cases involving severely ill people who might have suffered complications from their disease even with good medical care. Identifying what part of the medical care caused an injury can also be a challenge when many different providers participated in the care, so many courts have special rules to deal with situations where it is not possible to pinpoint the harmful acts, yet it is obvious to a layperson that medical care must have led to the patient’s injury. The final step in a medical malpractice case is establishing how much money should be awarded to a winning plaintiff. A person who wins a malpractice lawsuit has shown that the injury is someone’s fault under the rules of negligence, so the question then becomes how much money is needed to 3 compensate that person for what they have suffered.3 This monetary award is called the “damages.” The rules for determining damages can be complicated and take into account both actual economic losses, such as lost wages and the costs of future medical care related to the injury, and non-economic losses, such as pain and suffering or the loss of companionship of a spouse or child. As noted below, the value to be placed on non-economic losses has been particularly contentious. During the last three decades of the 20th Century, the traditional reliance on state courts to shape medical malpractice law started to change. As premiums for malpractice insurance climbed sharply, organized medicine began to put pressure on state legislatures to change many of the rules governing malpractice lawsuits that had been created by judges over the previous two centuries. State legislatures have responded to a number of issues concerning the malpractice tort claims system and passed statutes that changed a number of different aspects of malpractice law, some of which had dramatic effects. Those statutes are often referred to as “tort reforms.” More recently, the United States Congress has also considered legislation that would make federal laws more prominent in medical malpractice cases and would override at least some aspects of state laws. Below we describe a number of the issues that have led to statutory changes, and discuss those changes. 3 From a societal perspective, medical malpractice lawsuits also serve a preventive function by encouraging medical providers to practice in accordance with professional standards. How well the current malpractice system fulfills that role, and whether fear of malpractice action discourages providers from participating in reporting and other systems intended to identify and reduce medical errors, are contentious issues within the overall debate about the appropriateness of the current medical malpractice structure. 4 Medical Malpractice Policy Issues This section identifies some of the areas in which state laws have changed or clarified traditional common law rules for medical malpractice cases, focusing on: -- Who Evaluates the Adequacy of Care? Expert Witnesses Pre-Trial Screening of Cases Alternative Dispute Resolution -- How Much Money Should Be Awarded to Plaintiffs or Paid to Lawyers? Limits on Damages Attorney Compensation -- How Should Damages Be Paid, and by Whom? Joint and Several Liability Lump Sum or Periodic Payments Recoveries from Collateral Sources -- How Much Time Should People Have to Bring Lawsuits? Statutes of Limitations After discussing the areas in which state laws have been modified in recent decades, this section also identifies newer proposals for tort