Consumer-defined health plans: emerging challenges from tort and contract

The emergence of Consumer-Defined Health Plans with large deductibles means that many people will be financially responsible for all or most of their healthcare during any given year. This increasing exposure to costs will bring important changes in the physician-patient relationship, as patients seek more information about the care their physicians propose. Litigation can be anticipated in two areas. First, in tort law, informed consent claims may allege that providers failed to disclose the likely costs and medical importance of their care. Second, in contract law, patients may challenge the reasonableness of the prices they are charged. This Article explores potential causes of action in both areas. Ultimately, increasing transparency of pricing may lend greater rationality not only to pricing structures but also, it is to be hoped, to healthcare itself, as cost-worthiness of care assumes higher priority in medical decisionmaking.     

The effects of tort reform on medical malpractice insurance markets: an empirical analysis.

I use statewide loss ratio data to assess empirically the manner in which tort reforms have affected relative prices and profitability, and underwriting risk in the medical malpractice insurance industry. The empirical evidence suggests that the imposition of statutory ceilings on recoveries both decreased risk and improved relative profitability. Reforms that codified the required standard of care appeared to have a beneficial effect on relative profitability in certain cases.     

浅谈违约责任与侵权责任竞合的处理--兼评我国《合同法》第122条之规定

我国<合同法>第122条规定在违约责任与侵权责任发生竞合的情况下,受害人一方可选择提起违约之诉或侵权之诉.笔者认为此项规定是源于过去的理论,与其他法律不协调,脱离我国实际.在发生违约责任与侵权责任竞合的情况下,应采法条竞合说适用侵权行为法.     

Effects of tort reforms on the value of closed medical malpractice claims: a microanalysis

Tort reforms enacted by state legislatures mainly seek to reduce the rate of increase in medical malpractice insurance premiums and other costs of the professional liability system, such as "defensive medicine." We examine the effects tort reforms enacted during the 1970s have had on the probability that a claim will be paid, the amount of payment, and the speed with which the claim is resolved. Claims frequency is not used as a variable in this analysis, but findings from other studies pertaining to frequency are noted. This study uses two closed claims databases--one from the National Association of Insurance Commissioners, and one from the U.S. General Accounting Office. We merged the two data sets for purposes of this analysis. The observational unit was the individual claim. Data on tort reforms came from our own analysis of statutory changes by state. Dollar ceilings on recoveries ("caps") are shown to be the strongest reforms in terms of their impact on paid claim size. Most caps limit recovery for noneconomic loss, though some limit dollar awards. Other reforms that reduced payments per claim were costs awardable provisions and mandatory collateral offsets.     

侵权法视域下医疗过失认定标准的完善-兼论循证医学在医疗过失认定中的地位

医疗侵权诉讼中医疗过失的认定始终是一个热门而且沉重的话题。我国《侵权责任法》在医疗过失认定中坚守了“过错责任原则”,但由于规定较模糊和缺乏阐释,法官对依照何种标准认定医疗过失陷入了困境。有鉴于此,本文在科学界定医疗过失概念的基础上,考察了域外法医疗过失认定的抽象标准和具体标准,阐述了域外法理论和实务中循证医学在医疗过失中的优势和地位,最后结合我国现行的医疗过失认定标准的规定,从医疗过失认定抽象标准的完善、注意义务类型化和文本化、确立循证医学的证据地位、注意医疗过失认定标准和现有法律制度的衔接四个方面提出了建议和对策,以期为实务中医疗侵权诉讼的合理解决提供理论上的依据。