1 Medical Malpractice: The Patient vs. The Physician (1969). The report concluded, among other things, that sharp increases were taking place in the number of malpractice claims and suits, in the amount of settlement and damage awards, and in the malpractice premiums of physicians; those increases were being translated into higher patient charges; insurance companies were becoming reluctant to write malpractice insurance; most malpractice suits were arising out of actual injuries; and the better part of the cost of malpractice claims and suits was going to the attorneys involved.

2 The Commission was able to study the files of insurance companies on all 16,000 malpractice claims closed in 1970. It supported many of the Subcommittee's findings, and made many of its own. Suit was brought on half of the claims, but only 10 percent ever reached trial, and the physician won 80 percent of these cases. Settlement awards were made for over half the claims, and over half the awards—by settlement or by trial—were for less than $3,000. The Commission also found that the claims involved less than 5 percent of all health care providers.

3 Law, S. & Polan, S., Pain and Profit: The Politics of Malpractice 31 (1978)Google Scholar (quoting Dr. Robert Derbyshire).

4 The authors state that “the [PSRO] statute provides for the public disclosure of PSRO data and information ‘… in such cases and under such circumstances as the Secretary [of HEW] shall by regulation provide to assure adequate protection of the rights and interests of patients …. ‘ “ but that the “most recent federal regulations … provide that the PSRO may release only general statistical information which does not identify any particular doctor or hospital….” Id. at 37-38. Federal law, they point out, thus creates an obstacle to state medical boards’ access to the very kinds of PSRO information that might be the most useful in identifying below-standard physicians. It should be noted, however, that section 5(h) of Pub. L. No. 95-142, which became law in October 1977, amends the PSRO statute to authorize PSROs to furnish to appropriate federal agencies data and information about particular health care providers with respect to evidence of fraud and abuse. While this amendment is quite restricted, it could serve as a precedent for future statutes or regulations authorizing or requiring the release to licensing boards of information concerning specific cases of substandard medical practice.

5 The authors state that “[n]one of the proposals for national health insurance currently being considered by Congress” seriously challenges fee-for-service medicine. Id. at 26, 209. But H.R. 11879, the first version of which was introduced by Congressman Dellums (D.-Cal.) in May 1977, would completely abolish fee-for-service.

6 The authors state that “[t]he more experienced the [plaintiffs] lawyer is with malpractice law, the more likely it is that the case will be rejected [by the lawyer].” Id. at 82. The authority cited is Dietz, Baird, & Berul, The Medical Malpractice Legal System, in Report of the HEW Secretary's Malpractice Commission, Appendix, at 87 (1973). Law and Polan paraphrase that authority in the following way: “A random survey of lawyers in private practice showed that 50 percent of all potential malpractice clients were rejected. A selected survey of lawyers who regularly handle malpractice cases showed that they rejected 71 percent of potential malpractice clients.” Law & Polan, supra note 3, at 265. This is a simple misreading: the 50 percent figure applies only to lawyers who actually had closed at least one malpractice case. The rejection rate for all lawyers is 88 percent—17 percent higher than for the experienced group. Dietz, Baird, & Berul, supra, at 97.

7 The authors’ emphasis on the locality rule must be questioned. They state that “[t]he erosion of the locality rule has probably had a greater impact on the increase in malpractice claims in recent years than any other change in the law.” Law & Polan, supra note 3, at 100. Yet Dietz, Baird, & Berul, supra note 6, at 108, found that “lawyers often were unaware of the existence of the locality rule in their jurisdiction.” As Professor Curran, analyzing the study, wrote: “This kind of response is hardly indicative of a huge impact for this legal doctrine on the actual handling of cases.” Curran, W., How Lawyers Handle Medical Malpractice Cases 39 (1977)Google Scholar.

8 519 P.2d 981.

9 Law & Polan, supra note 3, at 118.

10 67 Ill. 2d 348, 367 N.E.2d 1250 (1977).

11 The court's opinion mistakenly describes the transfusion as one of Rh-positive blood to an Rh-negative mother; in reality, only a transfusion of Rh-negative blood to an Rhpositive mother could have had the specific results alleged by the plaintiff.

12 The book does not mention the possibility that these caps might violate the seventh amendment right to trial by jury, since under the statutes the cause of action remains, but the jury is not permitted to decide the total amount of damages—only the amount up to the cap.

13 Law & Polan, supra note 3, at 176.

14 The authors seem unaware that front-end and back-end “tails coverage” is now commonly available. In addition, they take issue with the contention that the occurrence method gives no guarantee of coverage either: patients and physicians, they say, can determine whether the physician can respond in damages “by the present existence or nonexistence of a policy.” Id. at 187. This conclusion is uncharacteristically naive. How many patients ask their doctors, before being treated, whether or not they are carrying malpractice insurance?

15 These comments would seem also to apply to provider-owned insurance trusts.

16 No. 228566 (Cal. Super. Gt., Sacramento Nov. 19, 1973).

17 The appeals court held that the trial judge showed bias against the defendant. Nork malpractice award is reversed for ‘bias,’ Medical World News, Sept. 4, 1978, at 70. In prior rulings, an appeals court had overruled the trial court decision on the ground that the defendant should have been allowed to revoke his waiver of a jury trial, 131 Cal. Rptr. 717 (1976), but the California Supreme Court had reinstated the original verdict, holding that the waiver was binding. 143 Cal. Rptr. 240.

18 Law & Polan, supra note 3, at 207.

19 Id. at 4.

20 Id. at 22 (quoting National Association of Insurance Commissioners, Medical Malpractice 11 (1976)Google Scholar).

21 Law & Polan, supra note 3, at 194.

22 Id.

23 Id.

24 The membership rate for the Medical Defence Union, which pays malpractice damages and costs for its members, is 40 pounds per annum for all medical practitioners except newly qualified physicians in their first year of membership, whose dues are 5 pounds.

25 Law & Polan, supra note 3, at 155-56.

26 Report of the HEW Secretary's Malpractice Commission, supra note 6, at 25.

27 Law & Polan, supra note 3, at 156.

28 Id. at 154.