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。     

Medical malpractice in the absence of a doctor-patient relationship: the potential liability of psychiatric examiners in New York State

In New York, psychiatrists (and all physicians) have a duty, in every circumstance with respect to such functions as they are required to undertake, to conduct themselves and all their examinations in a thorough and proper manner. Especially in a forensic setting, psychiatrists must bear in mind that they have a legal duty to perform a competent examination before they render an opinion. It is well established that malpractice liability does not require the preexistence of a doctor-patient relationship based on an undertaking for the purpose of treatment. The author discusses a long line of cases in New York State which holds that psychiatric examiners are potentially liable in malpractice for any breach of duty with respect to those functions that are undertaken. Failure to conduct a proper, careful, and competent examination may result in liability in a variety of areas: competency examinations, commitment proceedings, workers' compensation claims, and so on. Limitations on such malpractice liability are discussed. Unlike some jurisdictions, New York does not accord judicial immunity to psychiatric examiners.