NCPA - National Center for Policy Analysis


April 5, 2006

In Vermont, medical malpractice problems have yet to reach the levels plaguing many other states, but have grown steadily worse for years. Legislators need to come to grips with this issue before it gets any more serious, says the Ethan Allen Institute.

In the past, legislators have tried, says the Institute:

  • In 1992, Gov. Howard Dean (D) got the legislature to pass a provision for independent arbitration to screen out non-meritorious malpractice claims; unfortunately, it was never fully implemented.
  • In 2004, the vetoed Green Mountain Health bill contained a provision that a health care provider's expression of regret or apology would not be admissible as evidence of negligence in a liability dispute.

But there are other useful steps that could be taken, says the Institute:

  • Create a "tort formulary" that specifically lists actionable negligence by the doctor, such as intoxication and removing the wrong organ; these would be subject to unlimited damage claims.
  • Create a patient negligence formulary, specifying patient failures that cancel out judgment errors by the doctor, and a malpractice panel to review plaintiff's demand letters and suits.
  • Disallow joint and several liability, where a successful plaintiff can recover the entire judgment from any party contributing to the injury, even if that party is only five percent culpable.
  • Pass the "safe apology" provision contained in the vetoed Green Mountain health bill.

These reforms would make Vermont a state where injured patients have a reasonable opportunity to be compensated for medical mistakes, but doctors are also protected by clearer rules against exorbitant malpractice judgments.

Furthermore, the costs of malpractice premiums would drop sharply, along with the costs of defensive medicine, and doctors would be allowed to do their work without extra stress from lawyers, says the Institute.

Source: Editorial, "Next Up: Medical Malpractice Reform," Ethan Allen Institute, December 2005.

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