1 The term refers to obstetricians and gynecologists. The former provide prenatal care and deliver babies, while the latter provide primary health services to women. See Dorland's Illustrated Medical Dictionary 912, 574 (26th ed. 1985). Often, physicians do both, and refer to themselves as OB/GYNs. There is a single specialty for both areas of practice recognized by the American Board of Specialty Societies; therefore, physicians who are board-certified in obstetrics are also board-certified in gynecology, and vice versa. Personal Communication from Donna Montalto, Policy Analyst, American College of Obstetrics and Gynecology (Dec. 28, 1993). The discussion below focuses on the liability concerns raised by birthrelated patient injuries, which primarily involve the practice of obstetrics rather than the practice of gynecology.

2 The term appears to derive from the debate over enactment of the Virginia law, during which the Virginia medical malpractice insurance company, Virginia Insurance Reciprocal, when asked what it would take to get it to return to the malpractice insurance market in Virginia, replied: “Take the ‘bad babies’ out of the tort system … .” Va. Med., May 1987, at 285, cited in ‘Bad Baby Bill'Continues To Be Bad For Everyone — Except Obstetricians, J. Va. Trial Lawyers Ass'n, Winter 1990, at 5.

3 Florida Birth-Related Neurological Injury Compensation Plan, Fla. Stat. Ann. §§ 766.301-766.316 (West Supp. 1993); Virginia Birth-Related Neurological Compensation Act, Va. Code Ann. §§ 38.2-5000 to 38.2-5109 (Michie Supp. 1993).

4 H.B. 1471, Illinois (1987 -1988)(not enacted); A.B. 8097, 215th Leg., N.Y., 1st Reg. Sess. (1993) [hereinafter A.B. 8097]; S.B. 788, 138th Leg., North Carolina (1987) (reintroduced as H.B. 1517, 139th Leg., North Carolina (1992)).

5 Memorandum Accompanying Governor Cuomo's Bill #133, 1992-1993 Reg. Sess. (New York), at 14 thereinafter Cuomo Memorandum] (on file with author); Duff, David G., Compensation for Neurologically Impaired Infants: Medical No-Fault in Virginia, 27 Harv. J. on Lecis. 391, 392 (1990)Google Scholar (quoting Larry Framme, chief lobbyist for the Medical Society of Virginia, that the act represents “a landmark first step not only towards a solution to the insurance crisis facing obstetricians but towards a comprehensive attack on the liability problems faced by the medical profession.“).

6 See, e.g, Cuomo Memorandum, supra note 5, at 14.

7 According to the American College of Obstetricians and Gynecologists, one out of six obstetricians and 70% of family physicians in New York State have stopped delivering babies due to the risk of lawsuits. American College of Obstetricians and Gynecologists Fact Sheet: NYS Governor's Program Bill #133, Impaired Newborn Compensation Program (1993) (on file with author) [hereinafter Agog Factsheet].

The Virginia bad baby legislation had a slightly more attenuated relationship to access to obstetric care. In the mid-1980's, the crisis in that state did not come directly from obstetricians threatening to withdraw from practice, but from medical malpractice insurers, who threatened to withdraw from the market unless the legislature enacted a bad baby bill. For an interesting glimpse of the legislative process that resulted, see Duff, supra note 5.

8 Physicians perceive reducing care to Medicaid and other low-income women as an effective means of reducing their exposure to high-risk patients. Institute of Medicine, Division of Health Promotion and Disease Prevention, 1 Medical Professional Liability and the Delivery of Obstetrical Care 54-72 (1989) [hereinafter IOM Report, Vol. I]; American College of Obstetrics and Gynecology, The Obstetric Care Crisis: Ten Prominent Experts Address the Issues (Jan. 24, 1990) (addresses of Mary Brecht, Deputy Director, National Commission to Prevent Infant Mortality; Solan Chao, Chairman, Committee on Underserved Women, ACOG District II; and Stephen E. Gettinger, Co-Chairman, Committee on Professional Liability, ACOG District II). A considerable number of family physicians who serve low-income and rural communities are reported to be giving up or cutting down on obstetrics because of liability concerns. IOM Report, Vol. I., supra, at 42-48. Community and Migrant Health Centers report that they are finding it increasingly difficult to provide services to uninsured and low-income patients. Dana Hughes et al., Obstetrical Care for Low-Income Women: The Effects of Medical Malpractice on Community Health Centers, in Institute of Medicine, Division of Health Promotion and Disease Prevention, 2 Medical Professional Liability and the Delivery of Obstetrical Care 59 [Hereinafter IOM Report, Vol. II]. In New York State, 10 rural counties had a total of 17 obstetricians for 8,281 live births in 1988. Cuomo Memorandum, supra note 5, at 11.

9 The Harvard malpractice study found that only about 1 in 8 patients injured as the result of provider negligence filed a claim, and only about half of these claims uldmately were compensated. See Paul Weiler et al., Proposal for Medical Liability Reform, 267 JAMA 2355 (1992).

10 Cuomo Memorandum, supra note 5, at 10.

11 Deborah Lewis-Idema, Medical Professional Liability and Access to Obstetrical Care: Is There a Crisis, in IOM Report, Vol. II, supra note 8, at 78.

12 IOM Report, Vol. I, supra note 8, at 105.

13 Nye, David J. et al., The Causes of the Medical Malpractice Crisis: An Analysis of Claims Data and Insurance Company Finances, 76 Geo. LJ. 1495, 1548 (1988)Google Scholar (Table 19).

14 See 42 U.S.C. §§ 11101-11152 (1988). The information in the data bank also may be consulted by state medical boards in reviewing licensing applications, but is not available to the public. Id. § 11137.

15 See, e.g., ACOG Fact Sheet, supra note 7, at 3. “The continued high cost of liability insurance premiums, coupled with the increased risk of a lawsuit, have forced many physicians to close their practices or to limit the nature of their practice, especially in the obstetric specialty, thus exacerbating growing access problems both nationally and in New York state.” (on file with author).

16 Cuomo Memorandum, supra note 5, at 11.

17 See, e.g., Lewis-Idema, supra note 11, at 79 (“the most important caution regarding the research is that in a number of cases questions were asked in a manner that presupposed the answer … . The available literature may tend to overstate the importance of malpractice considerations in physicians’ decision making … . “ ) .

18 IOM Report, Vol. I, supra note 8, at 36.

19 See IOM Report, Vol. I, supra note 8, at 16-17 (Table 2.1). Virginia and Florida, which have passed bad baby bills, also had relatively high ratios, the twelfth and thirteenth highest in the country. Id.

20 See supra note 8 and accompanying text.

21 The Institute of Medicine reports that the number of physicians in non-metropolitan, office-based practices declined two percent nationwide between 1983 and 1986, and 10 percent between 1985 and 1986 alone. IOM Report, Vol. I, supra note 8, at 57. Allergists, cardiologists and psychiatrists have lower rates of providing services to Medicaid patients than OB/GYNs. Id.

22 Id.

23 Dennis Murray, Look What the Stork Brought for OBGs, Med. Econ., Feb. 22, 1993, at 93-94.

24 See supra note 12 and accompanying text.

25 See IOM Report, Vol. I, supra note 8, at 109.

26 These calculations are based on data from the Annual Survey of Professional Expenses, Med. Econ., Nov. 12, 1990, at 88. (hereinafter “MedicalEconomics 1981-199CT)(study on file with author).

27 See IOM Report, Vol. I, supra note 8, at 109 (Table 6.7).

28 See Medical Economics 1981-1990, supra note 26.

29 See Medical Economics 1981-1990, supra note 26.

30 Murray, supra note 23, at 93.

31 Id.

32 Id.

33 A study by the American Medical Association estimated that the average fee for a normal delivery increased from $584.07 to $1,1019.75 as the result of the rising cost of professional liability insurance. Roger Reynolds et al., The Cost of Medical Professional Liability, 257 JAMA 2776, 2780 (1987).

34 IOM Report, Vol. I, supra note 8, at 109.

35 See infra note 47 and accompanying text

36 See Helen, Burstin et al., Do the Poor Sue More?: A Case-Controlled Study of Malpractice Claims and Socioeconomic Status, 270 JAMA 1697 (1993)Google Scholar; Karen, Rothenberg, Myth and Reality: The Threat of Medical Malpractice Claims by Low Income Women, 20 L., Med. & Health Care 403 (1992)Google Scholar; IOM Report, Vol. I, supra note 8, at 64.

37 See IOM Report, Vol. I, supra note 8, at 64.

38 David, Sieradeki, Throwing Out the Baby With the Bathwater. Reform in the System for Compensating Obstetric Accidents, 7 Yale L. & Pol'y Rev. 538 n. 14 (1989)Google Scholar (citing Mitchell, Janet B. & Rachel, Shurman, Access to Private Obstetrics/Gynecology Services Under Medicaid, 22 Med. Care 1026, 1029 (1984)Google Scholar).

39 See Lewis-Idema, supra note 11, at 87 (“Medicaid payment rates, traditionally the primary deterrent to physician participation, continue to be a significant drawback … . “ ) .

40 IOM Report, Vol. I, supra note 8, at 26.

41 See supra note 28 and accompanying text.

42 The American Tort Reform Association, an organization of business and professional groups, asserts that “the liability crisis is about 75% the responsibility of lawyers and judges … .” American Tort Reform Ass'n, Questions and Answers on Civil Justice Reform, Question 16 (undated), cited in Nye et al., supra note 13, at 1497. See generally Jeffrey O'connell, The Lawsuit Lottery: Only The Lawyers Win (1979).

43 A report of a large-scale study of hospital admissions concluded that, while there were few birthrelated injuries overall, medical injuries affecting children “will account for a very large dollar ouday,” widi average costs of medical care (net of compensation) attributable to those injuries approximating $203,000, compared with an average cost of $17,000 for adult workers for injuries resulting from medical care, and with most victims requiring special schooling and instruction. Harvard Medical Practice Study to the State of New York, Patients, Doctors, and Lawyers: Medical Injury, Malpractice Litigation and Patient Compensation in New York 8-75 (1990) (hereinafter Harvard Study].

44 See, e.g., Stephen Daniels & Lori Andrews, The Shadow of the Law: fury Decisions in Obstetrics and Gynecology Cases, in IOM Report, Vol. II, supra note 8, at 162 (citing AMA executive vice president James Sammons as stating that errors “may be due to ‘highly advanced but imperfect technology’ “).

45 Id. at 189.

46 See, e.g., New York Medical Liability Reform Coalition, an Exploration of Prevalence and Social Provision for Neurologically Damaged Infants 55 (1988) (commonly referred to as the “Swann Report“).

47 See, e.g., Cuomo Memorandum, supra note 5, at 11 (“reduced access to obstetrical care is borne most acutely by the poor who are disproportionately represented among high risk pregnant women“); Solan Chao, Achievements of the ACOG New York Committee on Underserved Women, in The Obstetric Care Crisis: Ten Prominent Experts Address the Issues, supra note 8 (“you really can't prove that poor women are more litigious… . [h]owever, what you can prove is that poor women have more bad outcomes“).

48 See ACOG Factsheet, supra note 7.

49 ACOG publishes Committee Opinions and Policy Statements which provide up to date information on emerging clinical and scientific advances. These publications include a disclaimer that they are not meant to dictate an exclusive course of treatment or procedure to be followed. provide up to date information on emerging clinical and scientific advances. These publications include a disclaimer that they are not meant to dictate an exclusive course of treatment or procedure to be followed provide up to date information on emerging clinical and scientific advances. These publications include a disclaimer that they are not meant to dictate an exclusive course of treatment or procedure to be followed. For a discussion of practice guidelines generally, see Mehlman, Maxwell J., Assuring the Quality of Medical Care: The Impact of Outcome Measurement and Practice Standards, 18 L., Med. & Health Care 368 (1990)Google Scholar.

50 Cuomo Memorandum, supra note 5, at 10.

51 Weiler et al., supra note 9.

52 See Cuomo Memorandum, supra note 5, at 10.

53 See id.

54 Bovbjerg, Randall R. et al., Obstetrics and Malpractice: Evidence on the Performance of a Selective No-Fault System, 265 JAMA 2836, 2840 (1991)Google Scholar.

55 Id.

56 Id. at 2841.

57 See id.

58 Daniels & Andrews, supra note 44, at 162.

59 Id. at 191.

60 See, e.g., Cuomo Memorandum, supra note 5, at 10 (“On average, it takes over nine years from the time of an incident for a malpractice victim to receive any recovery from the tort process.“).

61 Bovbjerg et al., supra note 54, at 2840.

62 Cf. Andrew D. Freeman see Freeman, John M., No-Fault Cerebral Palsy Insurance: An Alternative to the Obstetrical Malpractice Lottery, 14 J. J. Health Pol., Pol'y & L. 707, 713 (1989)Google Scholar (advocating administrative system for cerebral palsy victims that would not determine whether a compensable event had occurred until a child's first or second birthday).

63 Duff, supra note 5, at 431 (quoting Sandra Kramer, General Counsel, Medical Society of Virginia).

64 See, e.g., A.B. 8097, supra note 4, § 850 (providing that bad baby compensation scheme proposed for New York would be exclusive remedy).

65 See Medical Malpractice Reforms Planned, Gore Says, Hous. CHRON., Apr. 2, 1993, at A4 (Nader and other consumer advocates oppose malpractice reform).

66 See Allen, Imersheim & Alan, Brents, The Impact of Large Medical Malpractice Awards on Malpractice Awardees, 13 J. Leg. Med. 33, 46 (1992)Google Scholar (four of seven plaintiffs who received awards of between $50,000-$99,999, and nine out of 16 plaintiffs who received awards of more than $250,000, felt award was too low).

67 See, e.g., Congressional Budget Office, Economic Implications of Rising Health Care Costs 27 (1992) (“malpractice premiums amount to less than one percent of national health expenditures … [and thus] … directly contribute little to the nation's overall health costs“).

68 Both programs only cover “birth-related neurological injuries.” These are defined under the Virginia law as follows:

Birth-related neurological injury” means injury to the brain or spinal cord of an infant caused by the deprivation of oxygen or mechanical injury occurring in the course of labor, delivery or resuscitation in the immediate post-delivery period in a hospital which renders the infant permanendy motorically disabled and (i) developmentally disabled or (ii) for infants sufficiently developed to be cognitively evaluated, congitively disabled. In order to constitute a “birth-related neurological injury” within the meaning of this chapter, such disability shall cause the infant to be permanently in need of assistance in all activities of daily living. This definition shall apply to live births only and shall not include disability or death caused by genetic or congenital abnormality, degenerative neurological disease, or maternal substance abuse.

Va. Code Ann. § 38.2-5001 (Michie 1991). The law was amended to read this way in 1990; originally, the only infants who were entitled to compensation were those who were “permanently non-ambulatory, aphasic [incapable of speech], incontinent, and in need of assistance in all phases of daily living.”Id.

The Florida law defines compensable injuries as: injury to the brain or spinal cord of a live infant weighing at least 2,500 grams at birth caused by oxygen deprivation or mechanical injury occurring in the course of labor, delivery or resuscitation in the immediate post-delivery period in a hospital, which renders the infant permanently and substantially mentally and physically impaired. This definition shall apply to live births only and shall not include disability or death by genetic or congenital abnormality.

Fla. Stat. Ann. § 766.302(2) (West 1992).

69 A.B. 8097, supra note 4, § 849(7) (b). The New York bill resembles the so-called “accelerated compensable events” approach to bad baby legislative reform proposed by Lawrence Tancredi & Randall Bovbjerg. See Laurence, Tancredi & Bovbjerg, Randall R., Rethinking Responsibility for Patient Injury: Accelerated-Compensation Events, A Malpractice and Quality Reform Ripe for a Test, 54 Law & Contemp. Probs. 147 (1991)Google Scholar; see also Bovbjerg et al., supra note 54. Since compensation theoretically would be provided only for injuries that could be caused by negligence, this strictly speaking would not be a “no-fault” approach, in contrast to the Virginia and Florida programs, which cover certain defined birth-related injuries regardless of whether they could have been caused by negligence. See supra note 68 (definitions of compensable events under the Virginia and Florida programs).

The accelerated compensable events approach originally was suggested by Albert Ehrenzweig in the 1960's. See Albert, Ehrenzweig, Compulsory “Hospital Accident” Insurance: A Needed First Step Toward the Displacement of Liability for “Medical Malpractice, 31 U. Chi. L. Rev. 279, 279-80 (1964)Google Scholar. It then was endorsed by Clark Havighurst and Laurence Tancredi in the early 1970's, under the name “Medical Adversity Insurance.” See Clark, Havighurst & Laurence, Tancredi, “Medical Adversity Insurance” — A No-Fault Approach to Medical Malpractice and Quality Assurance, 51 Milbank Mem. Fund Q. 125 (1973)Google Scholar. By the early 1980's, the name had changed again, to the “Designated Compensable Event” plan. See Laurence, Tancredi, Designated Compensable Events: A No-Fault Approach to Medical Malpractice, 10 L., Med. & Health Care 200, 201 (1982)Google Scholar. The new team of Tancredi and Bovbjerg changed the name once more, this time to “accelerated compensable events.” See Tancredi & Bovbjerg, supra.

These name changes were not just efforts by new faces to create interest in old ideas. They were reactions to criticisms and negative appraisals of the ACE approach, such as the evaluation by a Department of Health and Human Services task force in 1987. See United States Department of Health and Human Services, Pub. No. GPO 1987 190-412/70133, Report of the Task Force on Medical Liability and Malpractice 44 (1987). The task force objected that the ACE approach would only cover the injuries most cheaply addressed by the tort system, and therefore would not reduce the costs of the malpractice system substantially; that it would be too difficult to define a large number of compensable events; and that the ACE approach would spawn extensive litigation over whether an injury was or was not compensable. Id. at 44-45. Tancredi and Bovbjerg claim that they have been able to construct a set of definable, detectable compensable obstetric events. See Tancredi & Bovbjerg, supra, at 156. Even if this were true — and the authors leave a number of important questions unanswered, such as whether their methodology adequately accounted for false negatives — the approach is fraught with other problems, discussed infra at notes 70-104 and accompanying text. To date, six claims have been filed in Virginia, with four having been awarded compensation. Personal communication from Elinor Pyles, Executive Director, Virginia Birth-Related Neurological Injury Compensation Program (Dec. 28, 1993). In Florida, so far, 22 victims have been compensated. To date, 82 claims have been filed in Florida. Personal communication from Lynn Dickinson, Executive Director, Florida Birth-Related Neurological Injury Compensation Association (Jan. 25, 1994).

70 See A.B. 8097, supra note 4, § 850. One example of this litigiousness is provided by the requirement in the New York proposal that courts in which birth-related malpractice actions were filed must refer all disputes over whether the claim was covered under the new compensation system to the administrative board in charge of that system. See id. § 853(5). Plaintiffs who wished to remain within the tort system — in order, for example, to be eligible for larger damage awards (see notes 77-85 and accompanying text), many plaintiffs may prefer to remain within the traditional tort system, they would argue that their injury was not covered. The providers would intervene in the administrative proceeding (which the New York bill would entitle to do – set A.B. 8097, supra note 4, § 853(5) and contest the claiment's argument. The staff of the administrative commission itself might argue in favor of the claimant if it felt that the commission's task was to avoid paying claims out of its compensation fund whenever possible; the staff would side with the providers, on the other hand, if it thought that the commission's job was to cover as many claims as possible to reduce tort suits against providers. In either case, there would likely be significant, perhaps even three-way disputes, over whether a claim was covered under the administrative compensation scheme.

71 See Peter Barth, Workers’ Compensation and Work-Related Illnesses and Diseases 163, Tables 5.16 and 5.17 (1980).

72 Duff, supra note 5, at 435.

73 See id. at 435. Under a “claims-made” policy, the insured is covered for any claim made while the policy is in force. An “occurrence” policy provides coverage for any injury that occurs while the policy is in force.

74 See Va. Code Ann. § 38.2-5020C, A (Michie Supp. 1993); FLA. Stat. Ann. § 766.314 (West Supp. 1993). In addition, all licensed physicians in each state must pay $250 a year to help finance the program, regardless of whether they are obstetricians or agree to participate in the administrative compensation system. See Va. Code Ann. § 38.2-5020D; Fla. Stat. Ann. § 766.314(b). The constitutionality of this requirement was upheld in King v. Virginia Birth-Related Neurological Injury Compensation Program, 410 S.E.2d 656 (Va. 1991) and in Coy v. Birth-Related Neurological Injury Compensation Plan, 596 So.2d 943 (Fla. 1992), cert, denied, 113 S. Ct. 194 (1992).

75 See A.B. 8097, supra note 4, § 862(1). Under an earlier version of the New York proposal, A. 8793, 1991-1992 Sess., the compensation system would have been financed by an assessment on each provider equal to 95% of the reduction in the provider's malpractice insurance premiums following passage of the bill. See A. 8793, § 862. This version did not explain how this reduction would be identified — for example, if it would be made in regard to any premium reduction regardless of whether the reduction could be attributed to the bad baby reforms.

76 This figure is based on data from the state of Washington showing that obstetricians deliver, on average, 121 babies per year. See IOM Report, Vol. II, supra note 8, at 44.

77 See Va. Code Ann. § 38.2-5009 (Michie 1990).

78 Fla. Stat. Ann. § 766.31(b) (West 1992).

79 See A.B. 8097, supra note 4, § 856(3).

80 In Florida, parents can recover up to $100,000, presumably for pain and suffering or loss of enjoyment. Fla. Stat. Ann. § 766.31(b); see also A.B. 8097, supra note 4, § 856(3). Virginia allows claimants to recover 50% of the average weekly wage for Virginia workers in the private, non-farm sector. See Va. Code Ann. § 38.2-5009 (Michie 1990).

81 See, e.g., A.B. 8097, supra note 4, § 856(2).

82 Stone, Phillip C. & Hilton, Charles F., Medical Malpractice: The Year In Review, 23 U. Rich. L. Rev. 731, 749 (1989)Google Scholar.

83 The reality of pain and suffering was acknowledged even by the authors of the Harvard study, who proposed a no-fault scheme to replace the tort system generally. “There is no question,” they stated, “that the … category of pain and suffering is a tangible and significant kind of loss produced by medical accidents.” Harvard Study, supra note 43, at 72. There is less controversy over permitting recovery of lost earnings.

84 See supra note 69 and accompanying text.

85 The Harvard study found, for example, that while few patients who were injured as the result of provider negligence asserted claims or received compensation, “both the success rate and average payment are significantly higher for patients who suffer the more severely disabling injuries.” Harvard Study, supra note 43, at 1-7. In fact, the Harvard researchers found that between 30 and 50% of patients suffering more costly and severe disabilities were compensated under the tort system, a far higher percentage than patients with less serious sequelae. See id. at 11-14.

86 Remarks of Jeffrey Buley, Counsel to the Health Committee, New York State Senate, Meeting of the Special Committee on Medical Malpractice of the Association of the Bar of the City of New York (Oct. 8, 1991) (on file with author).

87 See John Rawls, A Theory of Justice 302 (1971).

88 42 U.S.C.A. §§ 12,101-12,213 (West Supp. 1993).

89 Id. § 12,102(2)(A).

90 Cf. 28 C.F.R. § 35.14 (Department of Justice regulations defining “disability” as, inter alia, “any physiological disorder or condition, cosmetic disfigurement, or anatomical loss affecting one or more of the following body systems: neurological, musculoskeletal, special sense organs, respiratory, (including speech organs) cardiovascular, reproductive, digestive, genitourinary, hemic and lymphatic, skin, and endocrine; (B) [a]ny mental or psychological disorder“). The regulations specifically mention orthopedic, visual, speech and hearing impairments, cerebral palsy, mental retardation, and learning disabilities as disabilities. Id.

91 Acency for Health Care Policy and Research, U.S. Dept. of Health and Human Services, Compendium of State Systems for Resolution of Medical Injury Claims 2-125 (1991). 92 757 S.W.2d 687 (Tex. 1988).

93 Id. at 690.

94 King v. Virginia Birth-Related Neurological Injury Compensation Program, 410 S.E.2d 656 (Va. 1991); Coy v. Florida Birth-Related Neurological Injury Compensation Plan, 596 So. 2d 573 (Fla. 1992).

95 Hiatt, Howard M., Harvard Medical Practice (NY) Study, in Acency for Health Care Policy & Research, U.S. Dep't of Health & Human Servs., Issues in Medical Liability: A Working Conference 15 (1991)Google Scholar (emphasis added).

96 See id. at 15 (“[t]he overall fraction of patients hospitalized who experienced negligent adverse effects might increase from 1 percent to 1.7 percent“).

97 Harvard Study, supra note 43, at 6-1, 6-2.

98 See generally Lori, Darling, The Applicability of Experience Rating to Medical Malpractice Insurance, 38 Case W. Res. L. Rev. 255, 265-70 (1987)Google Scholar. Following a 1986 legislative mandate, New York was one of the few states to institute an experience-rating system for medical malpractice premiums. The Insurance Department issued regulations that place a premiums surcharge on physicians based on the number of paid claims in excess of $30,000. Personal communication from Alan Rachlin, Supervising Attorney, Counsel's Office, New York State Department of Insurance (Dec. 28, 1992). While few physicians have been subjected to this surcharge, any further efforts in this direction in New York would be undercut by the provisions of the New York bad baby proposal.

99 See, e.g., Weiler, supra note 91, at 2357.

100 See A.B. 8097, supra note 4, §§ 860, 868.

101 Id. § 860.

102 American Medical News, Feb. 1, 1993, at 3.

103 See A.B. 8097, supra note 4, § 860.

104 Cuomo Memorandum, supra note 5, at 6.

105 Section 2 of the bill states only that the fund can be used to defray the expenses of the compensation commission itself and the costs of the recredentialing program. A.B. 8097, supra note 4, § 2.

106 Jonathan Lomas et al., Do Practice Guidelines Guide Practice! The Effect of a Consensus Statement on the Practice of Physicians, 321 N. Eng. J. Med. 1306 (1989) (finding little effect on rate of Caesarean deliveries, but emphasizing need for better integration of standards into clinical practice).

107 Kravitz, Richard L., et al., Malpractice Claims Data as a Quality Improvement Tool: I. Epidemiology of Error in Four Specialties, 266 JAMA 2087, 2091 (1991)Google Scholar.

108 See Garnick, Deborah W. et al., Can Practice Guidelines Reduce the Number and Costs of Malpractice Claims?, 266 JAMA 2856, 2857 (1991)Google Scholar.

109 See, e.g.. Mehlman, Maxwell J., Assuring the Quality of Medical Care: The Impact of Outcome Measurement and Practice Standards, 18 L., Med. & Health Care 368, 369-70 (1990)Google ScholarPubMed.

110 See G., Smith, Maine's Liability Demonstration Project: Relating Liability to Practice Parameters, 54 Am. Society of Anesthesiology Newsl. 18 (1990)Google Scholar; Me. Rev. Stat. Ann. tit. 24, § 2975(1) (West 1990).

111 While a discussion of state medical boards is beyond the scope of this article, for a discussion of that issue see, Jost, Timothy S., The Necessary and Proper Role of Regulation to Assure the Quality of Health Care, 25 Hous. L. Rev. 525, 582-87 (1988)Google Scholar.

112 James A. Henderson, Jr., The Virginia Birth-Related Injury Compensation Act: Limited No-Fault Statutes as Solutions to the “Medical Malpractice Crisis”, in IOM Report, Vol. II, supra note 8, at 209.