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Authors

Mark Monaco

Abstract

Beginning in the early 1970's, insurance companies nationwide began dropping out of the medical malpractice market. Medical malpractice had become an unprofitable field for investment partly because of a sharp and continuing increase both in the number of malpractice suits being brought against health-care providers and in the size of damage awards and settlements in medical malpractice cases. In response to increasing pressure from the medical profession and the insurance industry, many states in the mid-1970's began to experiment with ways of limiting the number of claims being entered against physicians and hospitals, and reducing the size of malpractice awards and settlements. New York passed its first medical malpractice reforms in 1974.' Despite these initial efforts, malpractice insurance premiums, the number of suits being brought against physicians, and the size of damage awards all continued to increase. New York then attempted to address this continuing problem through Program Bill No. 75 which Governor Cuomo signed into law on July 2, 1985. Thus, New York launched its second attempt to reform its medical malpractice tort claims systems. Present and past reform efforts both in New York and in other states have concentrated on reducing malpractice insurance premiums by limiting awards and hindering access to litigation, but have failed to address the most important flaws in the medical malpractice tor claims system. These flaws include a failure to compensate most victims of medical accidents, a failure to compensate promptly, and a failure to compensate without undue expense. Furthermore, the tort claims system has had a number of deleterious side-effects on the medical profession, including the proliferation of defensive medicine. In contrast, a no-fault system of compensation would provide immediate compensation to a larger number of those injured as the result of medical accidents. In addition, such a system would eliminate the physician's need to protect himself in ways that are ultimately costly or otherwise harmful to the health care consumer. Experts have not yet determined whether a no-fault system of recovery would, in the long run, be more successful in reducing malpractice insurance premiums than past and current reforms. Such an innovation, however, would address the most glaring flaws in our current system of malpractice compensation. This Note will first examine the courts' response to malpractice reform legislation, focusing on other states' counterparts to the Bill's major provisions." This Note will then examine the history of the malpractice crisis in New York State, including a discussion of the first reform efforts. Furthermore, this Note will discuss the Bill's major provisions in terms of their stated purpose and their relation to prior law. Finally, this Note will examine the Bill's probable impact on the malpractice problem, the Bill's major shortcomings, and an alternative direction for future reform efforts.

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