Learning to crawl: The use of voluntary caps on damages in medical malpractice litigation

Medical malpractice insurance "crises" seem to recur with distressing frequency. Indeed, the escalating costs of malpractice insurance premiums have become the focal point for advocates of tort reform. While we know quite a bit about the medical malpractice system, we know very little about what might work to fix things. Many reforms have been tried; little has worked. The two most commonly attempted reforms - at least at present - are legislatively imposed caps on noneconomic damages (i.e., pain and suffering) and the use of screening panels. Neither of these alternatives offers a satisfactory resolution to the problem. This Article proposes the use of voluntary caps, selected (if at all) by the plaintiff and the plaintiffs attorney. By the use of three separate litigation "tracks," incentives can be provided for plaintiffs to agree to caps on damages, while also providing separate inducements for the insurers who defend malpractice defendants and the physicians that they insure. The underlying benefit for all would be substantially reduced costs of litigation. The end result would be improved access to the courts for injured plaintiffs and a more rational claims resolution system. Legislation implementing the proposal would not be necessary; tailored discovery scheduling orders would suffice. In a politically charged climate, broad scale, equitable reform is not likely. Instead, we should begin a steady movement toward such reform in stages. We need to learn to crawl, before we can walk.