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Legislative Efforts to Reform Medical Malpractice: Unconstitutional in Practice?
Published online by Cambridge University Press: 01 January 2021
Extract
In response to the alleged medical malpractice crisis of the mid-1970s, many states enacted remedial legislation requiring that medical malpractice cases be filed and heard by some type of screening mechanism prior to being filed in the trial court. Several challenges to the constitutionality of those statutes were raised, but generally speaking, they were unsuccessful.
The most common challenge was that the statutes impermissibly discriminated against malpractice plaintiffs by requiring them to endure the expense and the time involved in such proceedings, as well as depriving them of their right to jury trial. The appellate courts considering these challenges generally upheld the legislation as an attempt by the legislatures to remedy a perceived crisis. Absent a showing of infringement upon a “fundamental right” or “suspect classification,” the legislation was held to be constitutional as it was reasonably related to the task sought to be accomplished. Such a response was predictable since, in most jurisdictions, there had been a marked increase in the number of malpractice actions filed as well as a marked increase in physicians’ malpractice insurance premiums.
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- Copyright © American Society of Law, Medicine and Ethics 1980
Footnotes
This article is the first of a continuing feature, entitled Hospital Law, that will be written or edited by Lee J. Dunn, Jr., J.D., LL.M. Mr. Dunn is the General Counsel of Northwestern Memorial Hospital in Chicago and the Treasurer of the American Society of Law & Medicine. Mr. Dunn is a past chairman of the Committee on Medicine and Law of the American Bar Association.
Readers of MEDICOLEGAL NEWS are invited to submit articles dealing with timely hospital law issues for consideration. Manuscripts should be approximately 3600 words and typed double spaced. Manuscripts should be sent to Managing Editor, MEDICOLEGAL NEWS, 520 Commonwealth Avenue, Boston 02215.
References
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