reform, only one of which has actually been adopted, focusing on: -- Patient Compensation Funds -- Aligning Malpractice Law and Patient Safety Concerns -- Expanding Risk Pools -- Prudent Physician Standard of Care -- Enterprise Liability Who Evaluates the Adequacy of Care? Proving that the physician breached the standard of care has been one of the most important and contentious requirements of malpractice actions, since it involves finding fault and placing blame on a particular physician. In 5 negligence lawsuits involving everyday matters, the jury generally decides for itself whether the defendant was reasonably careful, but medical malpractice usually requires that medical experts testify about the required standard of care and whether or not the defendant met that standard. Getting experts was somewhat difficult when the standard was a purely local one, since only doctors in that community could testify to the standard and they were reluctant to point fingers at their fellow physicians. It became much easier to bring in outside experts as the standard changed to a more national one, making lawsuits more feasible. In turn, this led to development of the so-called “professional witness” who travels from courtroom to courtroom to testify in lawsuits. The perception that such itinerant experts will say whatever supports the side of the case that is paying for their testimony has seriously undermined confidence among physicians in the fairness of the negligence system. In response to unease that physicians were being judged by laypersons on juries guided only by “competing experts,” states have made several types of tort law changes addressing the way that negligence is to be determined. Expert Witnesses. Some states have specific standards for medical experts, requiring that they be of the same specialty as the physician being sued, or that that the experts actually be practicing physicians. An example is a law providing that the expert witness must practice or have training in diagnosing or treating conditions similar to those of the patient and must devote at least 60% of his or her professional time to clinical practice or teaching in their field or specialty.4 Pre-Trial Screening of Cases. Another common state response is requiring malpractice cases to be screened by a medical review panel, mediation office, or some other panel or official before the cases go to court. Pre-trial review is intended to identify cases that lack merit (although the lawsuits generally are not precluded from moving forward by such a finding) and to encourage the parties to settle the case without litigation. Some states permit the results of the pretrial review to be admitted as evidence if the case 4 West Virginia Code §55.7B.7. 6 proceeds to court, while other states do not. Alaska, for example, requires review of filed cases by an expert panel appointed by the court, with the findings admissible at trial.5 Alternative Dispute Resolution. A number of states have also established alternatives to going to court, called Alternative Dispute Resolution procedures. For example, some states permit physicians to require that disputes with their patients will be resolved by arbitration rather than by judicial process. Another approach is to make arbitration voluntary, but to enforce arbitration agreements when they are made or at least permit the findings to be introduced into court. Connecticut, for example, does not require malpractice cases to go to arbitration, but if both sides agree to do so, the case will go to a screening panel of one lawyer and two physicians. The panel can make a finding as to whether or not there is any liability; if the decision is unanimous, it is admissible in any subsequent trial.6 How Much Money Should Be Awarded to Plaintiffs or Paid to Lawyers? Limits on Damages. Perhaps the most contentious set of issues deals with the amount of damages awarded in medical malpractice cases. The most straightforward part of the damage calculation would seem to be adding up the actual out-of-pocket losses that resulted from a negligent injury. These would include lost wages, medical care expenses, and other actual economic losses. Although it is simple in theory to measure economic losses, it in reality can become somewhat complicated when trying to estimate how much a person would have earned far into the future, or what medical or long term care they might need and how much it would cost many years after their injury. As difficult as calculating economic losses are, the more controversial part of calculating damages is estimating the dollar value of non-economic losses. In particular, there is substantial disagreement over the way to measure 5 Alaska Statutes §09.55.536. 6 Connecticut General Statutes, Chapter 697 §§ 38a-33 and 38a-36. 7 the “pain and suffering” that resulted from the injury. Deciding how much money it would take to compensate someone for a humiliating appearance or chronic pain or some other non-economic harm is a highly subjective determination. Consequently, the dollars that are awarded by different juries for similar injuries can vary substantially, raising the criticism that noneconomic damage awards are too arbitrary to be fair. In particular, physicians often feel that juries respond to the plight of the injured person and make large financial awards irrespective of whether the person’s misfortune was actually the result of