Toward a workable model of "no-fault" compensation for medical injury in the United States

I. INTRODUCTION

Tort "crises" and serious interest among policy-makers in tort reform are interrelated, cyclical phenomena in the United States. In the mid-1970s, and again in the mid-1980s, medical malpractice markets across the country experienced rapid increases in the frequency of claims, rising premiums, and in some places, shrinking options for professional indemnity coverage.1 A wave of tort reform measures followed, the majority of which were designed to chill the interest of plaintiffs' attorneys in bringing suit.2

Although claims severity appears to have crept steadily upward,3 most industry indicators suggest that medical indemnity markets have held fairly steady over the past decade.4 The extent of this placidity may be somewhat misleading, with the revenue lines of many insurers apparently buoyed by a cushion of savings from overly pessimistic premium hikes in the late-1980s.5 Nonetheless, the predictions of some pundits about a third malpractice crisis, 1990s-style, have not proved accurate.6 The decade proved to be a period of relatively little agitation for system reform among the key actors-physicians, plaintiffs, attorneys, and insurers. In response, state legislatures generally avoided consideration of any substantive changes in the regulation of medical malpractice; they were apparently content to leave the courts to tinker with and dilute some of the more staunchly pro-defendant measures that had been enacted in crisis years.7