A. Russell Localio et al., “Relation between Malpractice Claims and Adverse Events Due to Negligence: Results of the Harvard Medical Practice Study III,” New England Journal of Medicine, Vol. 325, No. 4, July 25, 1991, pages 245-51.

Angela M. Dodge and Steven F. Fitzer, When Good Doctors Get Sued, (Olalla, Wash.: Dodge Publications, 2001), cited in “How Often Doctors Get Sued for Medical Malpractice: Medical Malpractice.” Available at http://www.wrongdiagnosis.com/medical-malpractice/how_often_doctors_get_sued_for_medical_malpractice.htm.

Charles Toutant, “Malpractice Juries Tend to Side More With Doctors, Researcher Finds,” New Jersey Law Journal, April 26, 2007.  Of cases that go to trial, plaintiffs win only about 30 percent of the time.

See Harvey F. Wachsman and Steven Alschuler, Lethal Medicine: The Epidemic of Medical Malpractice in America (New York, N.Y.:  Henry Holt & Co., 1993).

See the American Medical Association, “Tennessee Joins States in Medical Liability Crisis,” Press Release, February 14, 2006.  Available at http://www.ama-assn.org/ama/pub/category/15992.html.  Access verified July 20, 2006.

Betsy McCaughey, “Unnecessary Deaths: The Human and Financial Costs of Hospital Infections,” Committee to Reduce Infection Deaths and the National Center for Policy Analysis, December 2005, available at http://www.ncpa.org/pub/special/pdf/RIDBooklet_120605.pdf,  Also see “The Use of Economic Modeling to Determine the Hospital Costs Associated with Nosocomial Infections,” Clinical Infectious Diseases, Vol. 36, 2003, pages 1,424-32.

Troyen Brennan et al., “Incidence of Adverse Events and Negligence in Hospitalized Patients: Results of the Harvard Medical Practice Study I,” New England Journal of Medicine, Vol. 324, No. 6, pages 370-76.  The study is based on the review of 30,121 randomly selected hospital records from 51 hospitals in the state of New York for the year 1984.  The results were then extrapolated to estimate the occurrence of adverse events among the entire hospital population of New York during 1984.

Linda T. Kohn, Janet M. Corrigan and Molla S. Donaldson, To Err Is Human: Building a Safer Health System, Institute of Medicine (Washington, D.C.: National Academy Press, 1999).  The extrapolations in the IOM report were based on Brennan et al., “Incidence of Adverse Events and Negligence in Hospitalized Patients: Results of the Harvard Medical Practice Study I;” Lucian L. Leape et al., “The Nature of Adverse Events in Hospitalized Patients: Results of the Harvard Medical Practice Study II,” New England Journal of Medicine, Vol. 324, No. 6, 1991, pages 377–84; and Eric J. Thomas et al., “Incidence and Types of Adverse Events and Negligent Care in Utah and Colorado,” Medical Care, Vol. 38, No. 3, pages 261-71.

Clement J. McDonald, Michael Weiner and Siu L. Hui, “Deaths Due to Medical Errors Are Exaggerated in Institute of Medicine Report,” Journal of the American Medical Association, Vol. 284, No.1, July 5, 2000, pages 93-95.

Lucian L. Leape, “Institute of Medicine Error Figures Are Not Exaggerated,” Journal of the American Medical Association, Vol. 284, No.1, July 5, 2000, pages 95-97.

Localio et al., “Relation between Malpractice Claims and Adverse Events Due to Negligence: Results of the Harvard Medical Practice Study III.”

Richard Anderson, “An ‘Epidemic of Medical Malpractice?’ A Commentary on the Harvard Medical Malpractice Study,” Manhattan Institute, Civil Justice Memo No. 27, July 1996.  See also Linda Gorman, “Too Many Errors?” in John Goodman et al., Handbook on State Health Care Reform, National Center for Policy Analysis; available at http://www.ncpa.org/email/State_HC_Reform_6-8-07.pdf, page 17.

Ibid.

Robert M. Wachter and Kaveh G. Shojania, Internal Bleeding (New York: Rugged Land, 2005).

Joseph T. Hallinan, “Once Seen as Risky, One Group of Doctors Changes Its Ways,” Wall Street Journal, June 21, 2005.  In fact, several studies from other countries indicate that the rate of anesthesia deaths has declined from about two per 10,000 anesthetics administered to one per 200,000.

Robert Davis, “Wrong Site Surgeries on the Rise,” USA Today, April 17, 2006.

Richard Hillestad et al., “Can Electronic Medical Record Systems Transform Health Care? Potential Health Benefits, Savings, and Costs,” Health Affairs, Vol. 24, No. 5, September/October 2005, pages 1,103-17; and see “Industry Facts-at-a-Glance,” National Association of Chain Drug Stores. Available at http://www.nacds.org/wmspage.cfm?parm1=507#retail.  Accessed  February 8, 2007.  In 2005, about 3.38 billion retail prescriptions were written.   See Catharine W. Burt and Jane E. Sisk, “Which Physicians and Practices Are Using Electronic Medical Records?” Health Affairs, Vol. 24, No. 5, September/October 2005, pages 1,334-43.

Burt and Sisk, “Which Physicians and Practices Are Using Electronic Medical Records?”

Localio et al., “Relation between Malpractice Claims and Adverse Events Due to Negligence: Results of the Harvard Medical Practice Study III.”

David M. Studdert et al., “Claims, Errors and Compensation Payments in Medical Malpractice Litigation,” New England Journal of Medicine, Vol. 354, No. 19, May 2006, pages 2,024-33.

Ibid.

Ibid.

Robert A. Yoho and Kenneth R. Zuetel, “State of Emergency.” International Journal of Cosmetic Surgery and Aesthetic Dermatology, Vol. 4, No. 2, 2002, pages 75-80.  Jury awards vary widely by state.  One study examining seven states found the median payout ranged from $5,000 to $350,000 depending on the state and the type of injury.  See Stu Smith, “Majority of Medical Malpractice Claims in Seven States Closed Without Compensation Payments,” United States Department of Justice, March 25, 2007.

Insurance Information Institute, “Medical Malpractice,” May 2007.  Available at http://www.iii.org/media/hottopics/insurance/medicalmal.  Access verified July 12, 2007.  See  also, “Health Care Spending in the United States and OECD Countries,” Kaiser Family Foundation, January 2007.

Malpractice insurance premiums are based on a physician’s specialty, riskiness of procedures, amount of coverage and whether the physician works full time or part time.  Patricia Danzon, Mark V. Pauly and Raynard S. Kington, “The Effects of Malpractice Litigation on Physicians’ Fees and Incomes,” American Economic Review, Vol. 80, No. 2, 1990, pages 122-27.

Interviews conducted by the U.S. Government Accountability Office in the insurance, legal and medical industries suggest that contributing factors include the increased litigiousness of society, greater expectations for medical care, reduced quality of care, and “lottery mentality” (suing as a way to get a large sum of money). U.S. Government Accountability Office, “Medical Malpractice Insurance:  Multiple Factors Have Contributed to Increased Premium Rates,” GAO-03-702, June 2003.  Available at http://www.gao.gov/new.items/d03702.pdf. Access verified July 17, 2006. A lack of comprehensive state-level data prevents closer examination of the cause of these losses, such as analyzing the severity of medical malpractice claims for individual insurers.

Reed Neil Olsen, “The Reform of Medical Malpractice Law:  Historical Perspectives,” American Journal of Economics and Sociology, Vol. 55, No. 3, July 1996, pages 257-75.

Ibid.

William M. Sage, “The Forgotten Third:  Liability Insurance and the Medical Malpractice Crisis,” Health Affairs, Vol. 23, No. 4, July/August 2004, pages 10-21.

Ibid.

Michelle Mello et al., “Caring for Patients in a Malpractice Crisis: Physician Satisfaction and Quality of Care,” Health Affairs, Vol. 23, 2004, pages 42-53.

Patricia Danzon, Mark V. Pauly and Raymond Kington, “The Effects of Malpractice Litigation on Physicians’ Fees and Incomes,” American Economic Review, Vol. 80, No. 2, May 1990, pages 122-27.  Researchers found that following two years of sharp premium increases, premiums declined from 1976 to 1978, yet physicians’ fees remained at higher levels with no indication of lower net incomes.

Mark Pauly et al., “Who Pays the Incidence of High Malpractice Premiums,” Forum for Health Economics and Policy, Vol. 9, Issue 1, 2006.

Insurance Information Institute, “Medical Malpractice Insurance,” Insurance Issues Series, Vol. 1, No. 1, June 2003.

Daniel B. Kessler and Mark McClellan, “How Liability Law Affects Medical Productivity,” Journal of Health Economics, Vol. 21, No. 6, November 2002, pages 491-522.  Kessler and McClellan obtained survey data from the Physician Insurance Association of America (PIAA) for 95,000 physicians in 19 states with significant malpractice premiums.  The data listed 85,000 patient claims, details of the alleged injuries and compensation payouts from 1984 to 1994.

Hospital expenditures were measured by adding up all Medicare reimbursements, out-of-pocket deductibles and copays.  Additionally, treatments were divided into three types:  diagnostic testing, therapeutic (drug treatments) and other services (nursing, room and board). Results showed that while health outcomes were similar for the general elderly population, expenditures for heart patients in the 19-state sample were higher than the U.S. population on average, growing 52.5 percent for AMI patients (compared to 49.7 percent for the U.S. average) over 10 years, and 47.7 percent for IHD patients (compared to 44.8 percent for the U.S. average) over 10 years, with most of the growth occurring in therapeutic treatments.

This is their estimate of health care costs that could have been avoided, in the sample of patients they analyzed, without reducing the quality of care or outcome of treatment.  See Daniel Kessler and Mark McClellan, “How Liability Law Affects Medical Productivity,” Journal of Health Economics, Vol. 21, No. 6, November 2002, pages 491-522.

Christopher J. Conover, “Health Care Regulation: A $169 Billion Hidden Tax,” Cato Institute, Policy Analysis No. 527, October 4, 2004.  Other estimates on the nationwide cost of defensive medicine differ according to the samples used in specific studies.  For example, one study examined obstetrical costs after tort reform, assuming a reduction in  unnecessary cesareans. But researchers found the savings to be less than one-half percent of total obstetrical costs in the United States.  See Lisa Dubay et  al., “The Impact of Malpractice Fears on Cesarean Section Rates,” Journal of Health Economics, Vol. 18, 1999, pages 491-522.

Authors’ calculation based on data from “National Health Expenditures by Type of Service and Source of Funds: Calendar Years 2005 – 1960,” Centers for Medicare and Medicaid Services.  Some of these costs, however, may be due to inefficiencies in the health care system, rather than defensive medicine, since doctors and patients using third party insurance could be indifferent to the cost of additional treatments if they are not paying for them directly.

Tillinghast, “2006 Update on U.S. Tort Cost Trends,” Towers Perrin.

“Efforts to Reduce Unnecessary C-Sections,” American College of Nurse-Midwives.

Ibid.

Tong Li et al., “Physician Cesarean Delivery Rates and Risk-Adjusted Perinatal Outcomes,” Obstetrics and Gynecology, Vol. 101, No. 6, June 2003, pages 1,204-12.

American Medical Association, “Tennessee Joins States in Medical Liability Crisis,” Press Release, February 14, 2006.  Available at http://www.ama-assn.org/ama/pub/category/15992.html.  Access verified July 20, 2006.

Robert Quinn, “Medical Malpractice Insurance:  The Reputation Effect and Defensive Medicine,” Journal of Risk and Insurance, Vol. 65, No. 3, September 1998, pages 467-84.  Quinn calls this avoidance behavior “revenue-reducing defensive medicine,” since it tends to reduce a physician’s revenue, but also lowers the probability of a malpractice claim.

Quinn obtained data from the largest malpractice insurer at the time, St. Paul Company, on family physicians and the effect that malpractice rates and tort reforms had on their behavior.  Other factors taken into account included an area’s divorce rate (indicating a potentially litigious area), physicians’ ages, and the area birth rate (indicating the potential for future income).

Katie Orrico, “Statement of the Alliance of Specialty Medicine before the House Energy and Commerce Health Subcommittee on the Subject of ‘Assessing the Need to Enact Medical Liability Reform,’” Alliance for Specialty Medicine, February 27, 2003.  Available at http://www.neurosurgeon.org/advocacy/wc/archives/mlr/AllianceTestimonyHouseEnergeyCommerce2-03.pdf.  Access verified August 29, 2007.

Prior to Prop 103, only health and life premiums had to be approved by the California Department of Insurance.  California Department of Insurance, “Prop 103 Fact Sheet,” May 23, 2003.  Available at http://www.insurance.ca.gov/0200-industry/0500-legal-info/0500-gen-legal-info/prop-103-fact-sheet.cfm.

Under the federal Gramm-Leach-Bliley Act (GLB) passed in 1999, bank holding companies, securities firms, insurance companies and others were permitted to engage in cross-selling of services; for instance, banks could sell insurance services. Insurance Information Institute, “Gramm-Leach-Bliley,” Available at http://www.fiancialservicesfacts.org.

U. S. Government Accountability Office, “Medical Malpractice Insurance.”

These include risk retention groups (RRGs), which are liability insurance companies that are owned by their members — in this case, physicians.  While an RRG is licensed in one state, it is permitted by federal law to cover physicians in other states as well. See the Risk Retention Reporter at http://www.rrr.com.  Self-insured institutions, such as hospitals, have enough assets to pay out claims without a third-party insurer.

Californians Allied for Patient Protection, “Prop 103 vs. MICRA:  The Flawed Analysis by the Foundation for Taxpayer and Consumer Rights,” California Medical Association, December 2003, page 1.  Available at http://www.calphys.org/assets/applets/prop103_myths.pdf.  Access verified July 18, 2006.

McCullough, Campbell and Lane, LLP, “Summary of Medical Malpractice Law: Indiana,” Available at http://www.mcandl.com/indiana.html.  Access verified August 2, 2007.

Frank A. Sloan et al., “Public Medical Malpractice Insurance: An Analysis of State-Operated Patient Compensation Funds,” Project on Medical Liability in Pennsylvania, DePaul Law Review, Vol. 54, 2005, pages 247-276.

Ibid.

Frank A. Sloan et al., “The Road from Medical Injury to Claims Resolution:  How No-Fault and Tort Differ,” Law and Contemporary Problems, Vol. 35, spring 1997, pages 35-37.

Ibid. Researchers interviewed 123 women from both states between January and June 1996.  All of the women had filed a no-fault claim, a tort claim or both.  All of the cases filed through no-fault had been resolved by mid-June 1996.

Ibid.  Surveys analyzed in the study found that those who filed no-fault claims were primarily interested in receiving compensation to cover medical expenses and lost family income, while those who filed tort claims were motivated to seek retribution or to gain more knowledge about the specifics of the injury.

Ibid.

The mean number of errors was 0.52 per tort claim and 0.18 per no-fault claim.

Frank A. Sloan, Kathryn Whetten-Goldstein and Gerald B. Hickson, “The Influence of Obstetric No-Fault Compensation on Obstetricians’ Practice Patterns,” American Journal of Obstetrics and Gynecology, Vol. 179, No. 3, September 1998, pages 671-76.  Sloan selected a random sample of 119 obstetricians, including 21 respondents who had quit practicing obstetrics (100 from Florida, 19 from Virginia).  The original sample was 203, but 65 could not be located, 12 refused to participate and 7 did not meet eligibility requirements.

Both Florida’s and Virginia’s no-fault programs are voluntary and funded by fees paid by participating hospitals and physicians.

David M. Studdert et al., “Can the United States Afford a ‘No-Fault’ System of Compensation for Medical Injury?” Law and Contemporary Problems, Vol. 60, No. 2, spring 1997, pages 1-34.

Ibid.

Ibid.

Ibid.

“No-Fault Auto Insurance,” Insurance Information Institute, May 2007.

Patricia M. Danzon, Medical Malpractice: Theory, Evidence and Public Policy (Cambridge, Mass.:  Harvard University Press, 1985), page 214.

Ibid, page 215.

“No-Fault Auto Insurance Unrelated to Accident Rates” Research Brief 9034, Rand Institute for Civil Justice, 2001.  Available online at http://www.rand.org/pubs/research_briefs/RB9034/index1.html.  Access verified February 1, 2007.

William M. Sage, “Enterprise Liability and the Emerging Managed Health Care System,” Law and Contemporary Problems, Vol. 60, No. 2, spring 1997, pages 159-210.

Michelle M. Mello, “Malpractice Liability and Medical Error Prevention: Strange Bedfellows?” prepared for the Council on Health Economics and Policy Conference on Medical Malpractice in Crisis; Health Policy Options, March 2004.

“Beyond MICRA: New Ideas for Liability Reform,” American College of Physicians; available at http://www.acponline.org/hpp/pospaper/micra.htm; access verified July 18, 2007.

David M. Studdert and Troy Brennan, “No-Fault Compensation for Medical Injuries,” Journal of the American Medical Association, Vol. 286, No. 2, July 11, 2001, pages 217-23.

Ibid.

Frank A. Sloan, “Experience Rating: Does It Make Sense for Medical Malpractice Insurance?” American Economic Review, Vol. 80, No. 2, 1990.

Gary M. Fournier and Melayne Morgan McInnis, “The Case for Experience Rating in Medical Malpractice Insurance: An Empirical Evaluation,” Florida State University, June 2001.  Available at http://garnet.acns.fsu.edu/~gfournie/WP_pdfs/jri_june2001_final.pdf.  Researchers estimated premiums under an experience rating scenario were derived by dividing the physicians into groups based on specialty, location and posterior risk type.  The sample included 131 anesthesiologists and 193 OB/GYNs in Miami Dade and Broward counties, and 274 anesthesiologists and 123 OB/GYNs in the rest of the state.

Actual premiums for anesthesiologists ranged from $26,000 to $70,000, compared to estimated premiums of $21,000 to $87,000 under experience rating.

Actual premiums for OB/GYNs ranged from $111,000 to $327,000 in Miami Dade and Broward counties, compared to estimated premiums of $78,000 to $449,000 under experience rating.  For OB/GYNs in the rest of the state, actual premiums ranged from $45,000 to $113,000, compared to estimated premiums of $32,000 to $232,000 under experience rating.

Fournier and McInnis, “The Case for Experience Rating in Medical Malpractice Insurance.”

Russ Allen, “Liability: Naked Exposure,” Risk and Insurance, September 15, 2004. Available at http://www.riskandinsurance.com/040915_feature_1.asp.  Access verified May 30, 2005.

Ibid.

Daniel B. Kessler and Mark McClellan, “How Liability Law Affects Medical Productivity,” Journal of Health Economics.

David M. Studdert, Y. Tony Yang and Michelle M. Mello, “Are Damage Caps Regressive?  A Study of   Malpractice Jury Verdicts in California,” Health Affairs, Vol. 23, No. 4, July/August 2004, pages 54-67.  This study assumes juries were not aware of the caps when awarding damages.  The study sample consisted of 152 jury verdicts where noneconomic damages were awarded in excess of $250,000.  The injuries involved in each case were then evaluated and rated by medical experts based on their severity.

Ibid.

Quinn, “Medical Malpractice Insurance.”

Richard S. Biondi and Arthur Gurevitch, “The Evidence:  Noneconomic Damage Caps Help Reduce Malpractice Insurance Premiums,” Milliman Consultants and Actuaries, Contigency, November/December 2003, pages 31-33.

W. Kip Viscusi and Patricia H. Born, “Damages Caps, Insurability, and the Performance of Medical Malpractice Insurance,” Journal of Risk and Insurance, Vol. 72, No. 1, March 2005, pages 23-43.

Alexander Tabarrok and Amanda Agan, “Medical Malpractice - Awards, Insurance, and Negligence: Which Are Related?” Manhattan Institute, Center for Legal Policy, Civil Justice Report No.10, May 2006.

Kenneth E. Thorpe, “The Medical Malpractice ‘Crisis’: Recent Trends and the Impact of State Tort Reforms,” Health Affairs, Web Exclusive, January 21, 2004.  Loss ratio is the proportion of an insurance premium that goes to litigation-related costs, such as awards, defense costs and settlements.

Paradoxically, Thorpe found mandatory offset rules did not significantly reduce loss ratios.

Christopher R. Gullen, “Structured Settlements: What Attorneys Ned to Learn from Grillo v. Pettiete.” Available at http://www.michbar.org/journal/article.cfm?articleID=604&volumeID=46.  Access verified September 19, 2007.

McCullough, Campbell and Lane LLP, “Summary of Medical Malpractice Law-California.”

Joan T. Schmidt, “Lump-Sum Awards in Workers’ Compensation,” Journal of Risk and Insurance, Vol. 54, No. 2, June 1987, pages 332-40.

McCullough, Campbell and Lane LLP, “Summary of Medical Malpractice Law–Florida.”

Ibid.

The effect of limiting attorneys’ fees on the frequency of lawsuits and size of damage awards has not been widely studied.

Washington State Bar Association, “Alternatives to Court,” pamphlet, March 6, 2006, available at http://www.wsba.org/media/publications/pamphlets/alternatives.htm.  Access verified July 18, 2006.  The primary difference between arbitration and mediation is that in arbitration, covered under the Federal Arbitration Act of 1925, the arbitrator hears the evidence and makes a decision for the parties, where in mediation, the parties involved negotiate a settlement they must all agree on, with the help of a neutral third party.

Thomas B. Metzloff, Ralph A. Peeples and Catherine T. Harris, “Empirical Perspectives on Mediation and Malpractice,” Law and Contemporary Problems, Vol. 60, No. 1, winter 1997, pages 107-52.  The program, which began in 1991, involved eight judicial districts in 13 counties.  Data was collected from all malpractice cases from December 1992 through December 31, 1995.

Lisa M. Cole, “Statement by the Physician Insurers Association of America,” Physician Insurers Association of America, January 29, 2003.

Elizabeth Rolph, Erik Moller and John E. Rolph, “Arbitration Agreements in Health Care,” Law and Contemporary Problems, Vol. 60, No. 153, winter 1997, pages 153-181.

Ibid.

Teresa M. Water et al., “Impact of State Tort Reforms on Physician Malpractice Payments,” Health Affairs, March/April 2007.  This study uses data from the National Practitioner Data Bank (NPDB).  Explanatory variables were tort reforms by state from 1991 to 2003.  Each tort reform was given an index ranking indicating the stringency of the reform.  Rankings were from 1 to 7, 1 to 5, or simply 0 or 1 (if there was little variation from state to state).  The higher the rating, the more stringent the reform.  If there was no reform, the ranking was 0.  Explanatory variables that were used included limiting attorneys’ fees, pretrial screening requirements, noneconomic damage caps, economic damage caps, joint and several liability, expert witness requirements, ad damnum clauses, and offset of the collateral source rule.

Ibid.  Anecdotal evidence suggests that allowing plaintiffs to ask for a specific amount in damages (known as the ad damnum clause) gives juries a “benchmark” to use in determining awards.  These awards may be much higher than if juries were not notified of the damages sought.  Restricting or eliminating the clause may result in juries awarding much lower amounts of damages to plaintiffs.  Another argument is that allowing ad damnum publicizes large awards sought by plaintiffs, thereby eliciting media attention and sympathy for plaintiffs that could influence juries’ award determinations. According to Waters et al., a plausible explanation for the ad damnum clause’s effect on the number of paid claims per physician and per year is that its elimination may give defendants more confidence to go to trial instead of settling out of court.  This would explain why eliminating the clause would reduce the number of paid claims, but not the average amount per claim.

Phillip K. Howard, “The Best Course of Treatment,” New York Times, July 21, 2003.

Charles J. Lockwood, “Editorial: Expert Medical Courts: An Idea Whose Time Has Come,” Contemporary OB/GYN, September 1, 2004.

Ibid.

Testimony of Paul J. Barringer III, before the U.S. House of Representatives, Committee on Energy and Commerce, Subcommittee on Health, July 13, 2006.

Ibid.

Joel B. Finkelstein, “Patient Safety Laboratories: States Pave the Way for a National Effort,” AMNews, January 3/10, 2005.  Available at http://www.ama-assn.org/amednews/2005/01/03/gvsa0103.htm.  Access verified July 18, 2006.

David M. Cutler, Robert Huckman and Mary Beth Landrum, “The Role of Information in Medical Markets:  An Analysis of Publicly Reported Outcomes in Cardiac Surgery,” National Bureau of Economic Research, Working Paper No. 10489, May 2004.

Finkelstein, “Patient Safety Laboratories: States Pave the Way for a National Effort,” page 2.

Kaiser et al., “National Survey on Consumers’ Experiences with Patient Safety and Quality Information.”

These include H.R. 2234, the 21st Century Health Information Act introduced in May 2005, S. 262, and the Health Technology to Enhance Quality Act introduced in June 2005.

Robert M. Wachter and Kaveh G. Shojania, Internal Bleeding, page 175.

Andi Atwater, “Project Puts Patient Info Online,” Wichita Eagle, April 7, 2006.

“$50 Million Electronic Medical Records Pilot Set to Start,” Boston Business Journal, January 16, 2006.

Julie Schmit, “Medical Record E-Devices Get Government Approval,” USA Today, July 18, 2006.

Devon M. Herrick and John C. Goodman, “The Market for Medical Care: Why You Don’t Know the Price; Why You Don’t Know about Quality; And What Can be Done About It,” National Center for Policy Analysis, Policy Report No. 296, March 12, 2007.

Much of this section is adapted from a proposal by Goodman et al., Handbook on State Health Care Reform (Dallas, Texas: National Center for Policy Analysis, 2007), Chapter X.

Richard Epstein, “Medical Malpractice, Imperfect Information, and the Contractual Foundation for Medical Services,” Law and Contemporary Problems, Vol. 49, No. 2, spring 1986, pages 201-212.

Paul H. Rubin, Tort Reform by Contract (Washington, D.C.: American Enterprise Institute, 1993).

Malpractice insurance premiums are commonly community rated, which reduces the financial incentive of doctors to invest in quality-improving measures such as electronic medical recordkeeping.

Kohn, Corrigan and Donaldson, To Err Is Human: Building a Safer Health System.

As noted above, not every patient would receive the same amount of money.

This comparison ignores the cost of nonfatal malpractice injuries.

The vaccine compensation law requires that petitions be filed within three years of the first sign of injury.  Under the law, petitioners who have gone more than 240 days without a ruling in the vaccine court can opt out and file a civil suit.  More than three dozen families who have waited at least this long have opted out, and more are sure to follow.