Medical Liability Reform: A Conceptual Framework
IN THE past decade, proposals for the reform of medical liability law have proliferated. These proposals have in some cases merged with the movement for the general reform of tort law generated by the liability insurance crisis that struck broad areas of business and professional enterprise during 1985 and 1986. The result has been the development of a wide variety of approaches to liability reform. This is, therefore, a pivotal time in the history of medical liability reform; the debate over medical liability has now evolved beyond a focus on litigation technicalities and into a fundamental reexamination ofbasic options. Different medical liability reforms, of course, would have different implications for a broad range ofpublic policy considerations: health care providers' incentives, the quality of care provided, whether to rely more or less on governmental regulation of health care, systems of medical discipline, and the compensation of patients. For example, as liability is limited, more regulation ofhealth care may be demanded, and as alternative sources ofcompensation become more available to patients, the use of lawsuits as a source of compensation may decline.
These issues ofpolicy can best be debated when all parties have a sophisticated understanding of the nature of possible reforms. Because the conceptual foundations and interrelations of these reforms often have not been clear, however, productive debate sometimes has been impeded. In this article I attempt to clear some of the underbrush that obscures these foundations and to present a more understandable picture ofthe reform alternatives that are now on the scene. Medical liability reform is essentially an exercise in choosing variables from a series of categories representing the different components of the system. The variables chosen then can be assembled into a single package that modifies existing law. There are five categories from which these variables must be selected: (1) the compensable event, (2) the measure ofcompensation, (3) the payment mechanism, (4) the forum used to resolve disputes, and (5) the method of implementing the new rights and responsibilities. Traditional medical malpractice law is just one of many possible combinations of variables from each category. Virtually every proposedand adopted reform of medical liability is simply a different combination of these variables. Because each of the five categories contains several variables, the range ofreform alternatives is considerable.