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tion in lieu of a jury trial, an agreement that is made enforceable by legislation.70 If a patient is injured, and seeks compensation, the determination of liability and the amount of damages is made by a neutral arbitrator rather than a court. Since the process of arbitration is streamlined, there are comparatively less administrative costs than in traditional litigation.

Courts generally have found this arbitration model acceptable.71 They have, however, carefully scrutinized the terms of the initial agreement and the circumstances of its signing in order to ensure that there was a fully informed and voluntary waiver of the patient's right to a jury trial.72 Such judicial scrutiny has largely dissipated the possible gains from arbitration as a more expeditious and economic procedure. In turn, this may explain why econometric analyses noted above have shown little impact of arbitration models on changes in the number of claims or severity of claims.73 Thus, while further experimentation in dispute resolution procedures might be appropriate for the benefit secured in individual cases, binding arbitration does not appear to offer huge potential as an alternative to tort litigation.

Administrative Fault-The administrative fault system advocated by the American Medical Association is a more serious attempt at ADR, because this program relies not on ad hoc agreements and adjudication, but on a new specialized tribunal that would be responsible for resolving all malpractice claims, while retaining fault as the basis for liability.74 Specifically, the proposal contemplates the establishment of a state agency called the "Medical Practices Review Board." The review board would adjudicate medical liability disputes, investigate substandard care by physicians, undertake disciplinary proceedings, and act as a source of information concerning performance by licensed physicians.75

Under this plan, malpractice claims would be removed from the civil justice system and placed before this administrative board for determination.76 Either

70 As of 1987, 15 states had in place such statutes. See Henderson, “Agreements Changing the Forum for Resolving Malpractice Claims," Law and Contemporary Problems 49 (1986): 243.

71 Madden v. Kaiser Foundation Hospital, 552 P.2d 1178 (Cal. 1976); Morris v. Metriyakool, 344 N.W.2d 736 (Mich. 1984).

72 See Bedikian, “Medical Malpractice Arbitration Act: Michigan's Experience with Arbitration,” American Journal of Law and Medicine 10 (1984): 42. 73 See pages 48-49.

74 See Johnson, Phillips, Orentlicker, and Hatlie, "A Fault Based Administrative Alternative for Resolving Medical Malpractice Claims," Vanderbilt Law Review 42 (1989): 1366.

75 The board would be composed of seven people, each serving a term of five years. At least two, but not more than three, of the members of the board would be physicians. One or more would be consumer representatives. The board itself would appoint the other key personnel in the agency, including attorneys, claims reviewers and investigators.

76 The claims resolution process would be divided into four stages. First, there would be a pre-hearing in which an individual who contended that he or she was injured as a result of inadequate health care would initiate the claims process by filling out a simple form. The form would be reviewed by

party could then appeal the Board's decision to an intermediate appellate court in the state. The AMA proposal also calls for a number of changes in substantive medical liability law.77 In an effort to provide some quid pro quo for patients and thus survive constitutional challenge in the state courts, the AMA proposal contemplates broad powers for the Medical Practices Review Board in credentialing and disciplining physicians.78

The administrative fault-based proposal is an attempt to develop an integrated approach to both compensation for past medical injuries and deterrence of substandard practice in the future. There are, however, some concerns. First, the proposal does face a real constitutional difficulty, because while fault is retained as the basis for liability, the jury is eliminated entirely. If state courts are already striking down caps on tort damages as offensive to the right of access to the courts and juries, they will be very skeptical about the validity of the AMA proposal. Next, while many have advocated increased efforts by state disciplinary panels,79 it is not at all clear that the best efforts of such boards will result in significant deterrence signals.80 Probably in partial recognition of

board personnel and, if it appeared to have merit, would be reviewed by a peer expert. If both the claims reviewer and peer expert felt that the claim had some merit, an attorney on the board's staff would represent the injured claimant. If the claim was felt to be without merit, the patient could still pursue the dismissed claim with a private attorney.

In the hearing stage, an examiner, acting like an administrative law judge in the Social Security system, would preside in a judicial hearing. Prior to the hearing, both patient and health care provider would be required to submit blind settlement offers. The parties would be subject to sanctions if the outcome of the case did not represent a significant improvement over the settlement offer rejected at this stage. At the hearing itself, certain evidentiary rules would be in place, but the judge would be able to play an active role and could call independent experts if she saw fit.

The hearing examiner's decision could be appealed to the Board. A panel of three members of the Board, only one of whom could be a physician, would hear an appeal. No new factual determinations would be made at this stage. For all legal issues, however, the panel would conduct de novo review.

77 The AMA envisions some changes in the standard of care which, while not embracing the traditional locality rule, do acknowledge the role that the availability or unavailability of specialized equipment and personnel can play in treatment decisions. Another important change concerns causation. The proposal calls for abandonment of the more probable than not threshold for a finding of causation and allows liability if providers' negligence was a contributing factor. In these cases, damages would be apportioned according to a pure comparative negligence standard. With regard to informed consent, the AMA would adopt the reasonable patient standard. The proposal also opposes lump sum damage claims. In addition, it would cap non-economic damages by an amount tied to the percentage of the average annual wage in the state. Joint and several liability would be eliminated from medical negligence claims. A periodic payment schedule would be put into place and the collateral source rule would be overturned.

78 First, hospitals would be required to review physician performances on a regular basis and physicians who are not affiliated with institutions would be required to participate in a credentialing process undertaken by the state. The board would also maintain a clearing-house for information regarding physician discipline and sub-standard care. The board would also have authority to conduct on site review of physicians' practices. Broad powers for disciplining physicians would be lodged with the board. See generally American Medical Association/Specialty Society Medical Liability Project, Model Medical Liability and Patient Protection Act (May 1989).

79 See Wolfe, Bergman, and Silver, Medical Malpractice: The Need for Disciplinary Reform not Tort Reform (1986).

80 See Kusserow, Handley and Yessian, "An Overview of State Medical Discipline," JAMA 257 (1987): 820. Recently, several large states including

these potential drawbacks, the American Medical Association has prudently suggested that its plan be initiated in a few states on an experimental basis. This experimental period would also allow some assessment of the ways in which administrative fault either ameliorates or exacerbates the problems with peer review at the hospital level.

Organizational Liability-Another possible alternative to traditional malpractice litigation is to relieve physicians of the direct financial burden of malpractice insurance by shifting the focus of legal liability from individual physician to the hospital or health care institution connected with the incident. Organizational liability is consistent with a number of doctrinal developments in tort litigation that have expanded the "corporate" or "vicarious" liability of hospitals for the negligence of non-employee physicians.81 It also reflects some new insurance "channeling" arrangements wherein large hospitals provide their associated physicians with coverage under the institutions' own policy.

These changes in malpractice law and insurance approaches recognize that the hospital is better able to assess its risks and to distribute the burden of its liability across a broad pool of constituents, and thereby obviate the problems faced by individual physicians in the high risk sectors in obtaining insurance at reasonable cost. Even more attractive about this arrangement are the new incentives and opportunities it creates for institutional quality assurance. Because hospitals are much more likely to have their malpractice premiums set according to their claims experience, this new focus of liability would considerably sharpen the deterrence incentive created by malpractice litigation. The hospital also has the institutional perspective and capacity to develop comprehensive standards and procedures that promote quality assur

California, New York, Massachusetts and Florida have undertaken sweeping reforms in their state medical disciplinary apparat. While it is too early to judge in any final way the efficacy of such reforms, it appears that reviewing agencies may have difficulty gaining access to appropriate information regarding quality of care. See Keidan, Physician Discipline: Cure for the Medical Malpractice Crisis? (unpublished manuscript 1989) (on file with authors). These agencies are also especially sensitive to the vagaries of state funding and have had difficulty maintaining continuous employment of qualified investigators and lawyers. Thus, if the state's commitment to such disciplinary panels is not strong, especially in a fiscal sense, deterrence under an administrative fault plan could be weakened significantly.

* See Southwick, "Hospital Liability: Two Theories Have Been Merged," Journal of Legal Medicine 4 (1983): 1; and for recent reviews of the cases, see Jackson v. Power, 743 P.2d 1376 (Alaska 1987); Insinga v. Labella, 543 So.2d 209 (Fla. 1989).

ance and safety,82 akin to a "systems" approach 83 that would lessen the individual finger pointing that makes medical malpractice so emotionally destructive for providers.

There are, of course, problems with organizational liability. First, some would question whether it is equitable to make such hospital liability mandatory and exclusive. They would argue that legal insulation of the physician from liability would decrease deterrence incentives. In addition, there would be a financial problem in the legal shift to organizational liability as hospitals and other health care institutions. were saddled with much larger liability insurance premiums, while physicians would no longer have to pay such premiums. Unquestionably, shifts in health care reimbursement schedules would have to accompany any such move to organizational liability. In addition, small hospitals would have to aggregate their risk pools with other hospitals in order to function under organizational liability.

Finally, most physicians are not employed by hospitals and typically they have jealously guarded their professional autonomy, and their relations with patients, against control by hospital administrators. On the other hand, the fact is that doctors already face growing scrutiny from judges and juries in malpractice litigation and recently many state legislatures have been directing hospitals to create quality assurance programs that contemplate ongoing review of individual physicians' practice decisions and patterns, in order to ensure safer and better care for patients. Thus, doctors are increasingly subject to the kind of supervision contemplated by organizational liability, without having the benefit of any relief for the costs of malpractice insurance.

Ironically, this expansion of quality assurance activities in an effort to reduce the need for and incidence of malpractice litigation by patients has in turn precipitated yet another bout of litigation, this time by affected doctors. The ultimate source of the medical staff's ability to secure and enforce a higher quality of care in the hospital is the peer review committees' power to suspend or revoke the credentials of those incumbent doctors who have provided sub-standard

82 As mentioned previously, changes in liability standards have increased incentives for physicians to develop appropriate practice standards. For example, in a major risk management effort, the Department of Anesthesia at Harvard Medical School devised specific detailed and mandatory standards for minimal patient monitoring during anesthesia. Such standards had not existed previously but were accepted by practitioners. See Eichhorn, Cooper and Cullen, "Standards for Patient Monitoring During Anesthesia at Harvard Medical School," JAMA 256 (1986): 1017-1020. These practice standards appeared to have lowered malpractice claims against anesthesiologists at participating institutions and efforts are now underway to develop similar standards for obstetricians at Harvard Medical School.

83 Berwick, "Continuous Improvement," 53.

care in the hospital, and to deny hospital staff privileges to applicants who have shown evidence of poor quality elsewhere. Such decisions to suspend or deny practice credentials can be quite controversial, and lead to litigation on a variety of fronts.

First, physicians who have suffered suspension of credentials may claim that their due process rights were not respected, especially in cases involving public hospitals.84 Alternatively, physicians may seek rights of cross examination and other trappings of adjudicative process. 85 More importantly, physicians who lose their practice privileges may allege antitrust violations: the aggrieved physician will claim that the decision to suspend privileges was not motivated by concerns about quality of care, but rather was an attempt to curb competition in the specialty area.86 Indeed peer review activities are now drawing considerable antitrust scrutiny, a trend that will likely accelerate in light of a recent Supreme Court decision.87 Yet another concern of physicians who serve on peer review committees is the threat of involvement in malpractice litigation. Since these committees often pass judgment on specific incidents involving physicians on the medical staff, their activities are of special interest to plaintiffs' attorneys who would like access to peer review committee documents. While most states provide explicit immunity for peer review activities, some state courts have managed to find exceptions to these statutes in order to allow discovery of the peer review data.88 Such judicial decisions

84 See Richardson V. St. Johns Mercy Hospital, 674 S.W.2d 200 (Mo.App.1984).

85 See Rao v. St. Elizabeth's Hospital, 488 N.E.2d 685 (Ill.App. 5 Dist. 1986).

86 It seems likely that there will be more antitrust litigation in the future. Since 1975, with the decision of Goldfarb v. Virginia State Bar, 421 U.S. 773 (1975), the Supreme Court has indicated that the practice of the learned professions will be considered commerce, and thus subject to the scrutiny of the antitrust laws. The initial Supreme Court cases regarding health care antitrust concerned efforts to remove anticompetitive rules which had been put in place by insurers and providers. See Union Labor Life Insurance Company v. Pireno, 458 U.S. 119 (1981); Arizona v. Maricopa County Medical Society, 457 U.S. 332 (1981). Soon however, aggrieved individuals began to request antitrust scrutiny regarding the behavior of individual hospitals or physicians. See Jefferson Parish Hospital District #2 v. Hyde, 466 U.S. 2 (1984); Weiss v. York Hospital, 745 F.2d 786 (3rd Cir. 1984).

87 See Patrick v. Burget, 108 S.Ct. 1658 (1988). With the decision of Patrick v. Burget, the Supreme Court indicated that the state action doctrine would not immunize state-required peer review activities by private hospital staffs from antitrust litigation unless states provided official review of such private decisions. Although the Health Care Quality Improvement Act of 1986 was intended to limit antitrust litigation regarding peer review, many observers doubt that it will have this effect. See e.g. Colantonio, "The Health Care Quality Improvement Act of 1986 and its Impact on Hospital Law," West Virginia Law Review 91 (1988): 91; Blumstein and Sloan, “Antitrust in Hospital Peer Review," Law and Contemporary Problems 51 (1988): 7. Thus we can expect continued antitrust scrutiny of peer review activities. See Bolt v. Halifax Hospital Medical Center, 851 F.2d 1273 (11th Circuit), vacated and petition for rehearing en banc granted, 861 F.2d 1233 (11th Cir. 1988), reinstated in part and vacated in part en banc, 874 F.2d 755 (11th Cir. 1989). Lawyers have had some doubts about bringing antitrust suits in this area, and since the major Supreme Court decision is so recent, it is difficult to predict the amount of litigation that will occur in the future. Nonetheless, the Patrick decision can only serve as a litigation incentive.

88 See Kalish v. Mt. Sinai Hospital, 270 N.W. 2d 783 (Minn. 1978).

appear to be influenced by the facts of the individual case, rather than the specific structure of the state immunity laws.89 Concerns about the confidentiality of peer review will likely continue to be an area of active litigation in the 1990s, especially as more states pass laws encouraging organizational peer review and quality assurance activities, and require that some of this data be turned over to the state for regulatory purposes. 90

These various types of litigation create serious concerns on the part of physicians involved in peer review. Even those physicians who recognize that the best long-term response to malpractice litigation is better quality medical practice, and that a physician's peers are better judges of medical care than lawyers or juries, are hesitant to become involved in peer review activities that may lead to litigation. While this is and will continue to be a significant problem even in the present system of tort litigation, it would become even more prominent if one moved to general organizational liability of hospitals. Thus, any comprehensive effort to address medical malpractice litigation must also address the legal problems raised by peer review activities.

No-Fault Patient Compensation-The drawbacks of both traditional tort litigation and of those alternatives that still rely on determinations of fault have led a number of people to advocate "no fault" approaches to medical injury compensation. As far back as the early 1970s, a number of scholars were proposing partial or complete no-fault systems.91 The partial no fault approaches center on accelerated compensation for designated injuries that are quite likely to be avoidable.92 These particular injuries would be extracted from the tort regime and be compensated administratively. Medical adversity insurance differs from pure no-fault or social insurance in that the providers of care remain responsible for paying for the listed outcomes-a form of "strict liability” through provider-purchased, experience-rated casualty insurance. More recently, proponents have been able to draw on the experience of New Zealand 93 and

89 Compare Coburn v. Seda, 677 P.2d 173 (1984), with Chandra v. Sprinkle, 678 S.W.2d 804 (Mo. 1984).

90 See e.g. Beth Israel Hospital Association v. The Board of Registration in Medicine, 515 N.E.2d 574 (Mass. 1987).

91 See Havighurst and Tancredi, "Medical Adversity Insurance, a NoFault to Medical Malpractice and Quality Assurance," Insurance Law Journal 613 (1974): 69; O'Connell, "No-Fault Insurance for Injuries Arising from Medical Treatment: A Proposal for Elective Coverage," Emory Law Journal 24 (1975): 21.

92 See Tancredi, “Designing a No-Fault Alternative," Law and Contemporary Problems 49 (1986): 277; American Bar Association, Designated Compensable Event System: A Feasibility Study (1979). The latest iteration of the concept is the ACE (accelerated compensable event).

93 See Gellhorn, “Medical Malpractice Litigation (U.S.)-Medical Mishap Compensation (N.Z.)," Cornell Law Review 73 (1988): 170.

Sweden 94 to answer the critics of no-fault and to develop realistic approaches to an administrative compensation system. 95 In both Britain and Canada, there is sentiment for use of a no-fault model.9 96 In this country, the states of Virginia and Florida have put into effect no-fault compensation plans for neonatal neurological injury.97

How does a no-fault system work for compensation of medical injury? In Sweden, a combine of insurance companies provides a no-fault insurance program. 98 Complementing, yet separate from, the insurance compensation plan is the Medical Responsibility Board (MRB) that hears complaints about quality of care rendered to individuals.99 The advantage of uncoupling the compensation and deterrent approaches to medical injuries as the Swedes have done is that it frees both functions from the adversarial notions of tort litigation, providing greater and more equitable compensation and stronger deterrence signals. 100

Nonetheless, there are significant problems with the no-fault approach. Many have argued that our major present-day use of no-fault within workers' compensation has failed to provide appropriate compensation for individuals suffering from occupational dis101 Still others fear that a no-fault approach eases.

94 See Rosenthal, Dealing With Medical Malpractice: The British and Swedish Experience, (1988) 131-206.

95 See Halley, Fowks, Bigler, Ryan, Medical Malpractice Solutions: Systems and Proposals for Injury Compensation (Springfield, Ill., Charles Thomas 1989).

96 See British Medical Association, No-Fault Compensation Working Party Report (1987); R. Prichard, Medical Malpractice (1989).

97 See White, "Innovative No-Fault Tort Reform for an Endangered Specialty," Virginia Law Review 74 (1988): 1487. Some have criticized the Virginia system for only controlling cases of people who would probably recover in the tort system, thereby resulting in less compensation for them and no more compensation for others. See Gallup, "Can No-Fault Compensation of Impaired Infants Alleviate the Malpractice Crisis in Obstetrics?" Journal of Health Politics, Policy and Law, 14 (1989): 69.

98 A patient seeking compensation for medical injury must merely show that her injuries are of a designated type and compensation is available. There need be no allegation of negligence, and thus physicians often assist their patients in the effort to secure compensation. See Oldertz, "The Swedish Patient Insurance Scheme-Eight Years of Experience," Medical Legal Journal 52 (1984): 43.

"9 Most such complaints are brought by patients but physicians are encouraged to self-report to their department heads who in return report to the MRB. The MRB can discipline physicians who provide poor quality care or can decide that no action is necessary. The MRB has both expert input and political and citizen representatives, similar to the boards envisioned by the AMA's fault-based system.

100 Patient compensation is more straightforward in the absence of the corrective justice aspects of tort litigation. Physicians can actually assist patients in their efforts to receive compensation. On the other hand, since compensation is not directly sought from the physician or his insurer, data regarding sub-standard care is more freely available. Quality assurance efforts proceed smoothly, free from concerns about investigations by plaintiffs attorneys regarding the quality assurance data. Thus, at least in theory, a no-fault system would provide greater compensation and clearer deterrent signals.

101 See Barth and Hunt, Workers Compensation and Work-Related Illnesses and Diseases (1980): see also Kutchins, "The Most Exclusive Remedy is No Remedy At All: Workers Compensation Coverage for Occupational Diseases," Labor Law Journal 32 (1981): 219-20. Indeed, one might conjecture that determining causation in medical injury cases may be much more difficult than determining causation in workers' compensation cases in that most patients will have a significant background of disease from which the medical care-induced injury must be disentangled. Thus no-fault approaches to medical injuries will likely have inherently higher administrative costs than workers' compensation.

would do away with the deterrent effect of medical malpractice litigation. This contention, however, overlooks the fact that no-fault is still a mode of legal liability with one party required to compensate the victims of its activities, and the requisite insurance would likely be provided at the level of hospital or other health care organization where premiums could be strongly experience rated. 102

Recently, we have completed a study of medical injury, and the costs arising out of such injury, in the state of New York. The data from this study indicate that in New York, at least, one can provide full compensation for the net financial losses of all seriously injured patients for roughly the same amount expended on litigation for only a selected number of those negligently injured. 103

Social Insurance-The relationship between providing health insurance for all Americans and tort reform must be underlined, because comprehensive health benefits would deal directly with many of the patient losses for which malpractice litigation now seeks redress. One major advantage of the Swedish and New Zealand systems for no-fault insurance for medical injury is that these compensation systems are nestled within a much more encompassing safety net of social welfare programs. For instance, in Sweden, there is a national health system that provides medical care for all individuals and comprehensive disability insurance for lost earnings. Thus their no-fault system does not absorb much of the costs arising out of an iatrogenic injury, and the smaller stake in the outcome reduces the intensity of conflict in individual cases.

Broader disability insurance and sick leave benefits would also decrease the overall costs associated with compensation programs for iatrogenic injury. When a collateral source offset is in place, any increase in the coverage of first party loss insurance correspondingly reduces the losses left to be handled by the much more expensive system of third party malpractice insurance.

Beyond Health Care Providers-Malpractice litigation is not the only aspect of tort law that plays a major role in the health care area. Just as prominent and often just as troubling are product liability suits against manufacturers of vaccines, prescription drugs and other medical appliances. Indeed, many of these cases are the result of the combined action of a manu

102 The best work on workers' compensation and deterrence suggests that workers' compensation has a considerable preventive effect on workplace fatalities. See Viscusi and Moore, Compensation Mechanisms for Job Risks: Wages, Workers' Compensation and Product Liability (forthcoming, Princeton University Press).

103 See Harvard Medical Practice Study, Patients, Doctors, and Lawyers (1990), chap. 8.

care in the hospital, and to deny hospital staff privileges to applicants who have shown evidence of poor quality elsewhere. Such decisions to suspend or deny practice credentials can be quite controversial, and lead to litigation on a variety of fronts.

First, physicians who have suffered suspension of credentials may claim that their due process rights were not respected, especially in cases involving public hospitals. 84 Alternatively, physicians may seek rights of cross examination and other trappings of adjudicative process. 85 More importantly, physicians who lose their practice privileges may allege antitrust violations: the aggrieved physician will claim that the decision to suspend privileges was not motivated by concerns about quality of care, but rather was an attempt to curb competition in the specialty area. 86 Indeed peer review activities are now drawing considerable antitrust scrutiny, a trend that will likely accelerate in light of a recent Supreme Court decision.87 Yet another concern of physicians who serve on peer review committees is the threat of involvement in malpractice litigation. Since these committees often pass judgment on specific incidents involving physicians on the medical staff, their activities are of special interest to plaintiffs' attorneys who would like access to peer review committee documents. While most states provide explicit immunity for peer review activities, some state courts have managed to find exceptions to these statutes in order to allow discovery of the peer review data.88 Such judicial decisions

84 See Richardson V. St. Johns Mercy Hospital, 674 S.W.2d 200 (Mo.App.1984).

85 See Rao v. St. Elizabeth's Hospital, 488 N.E.2d 685 (Ill.App. 5 Dist. 1986).

86 It seems likely that there will be more antitrust litigation in the future. Since 1975, with the decision of Goldfarb v. Virginia State Bar, 421 U.S. 773 (1975), the Supreme Court has indicated that the practice of the learned professions will be considered commerce, and thus subject to the scrutiny of the antitrust laws. The initial Supreme Court cases regarding health care antitrust concerned efforts to remove anticompetitive rules which had been put in place by insurers and providers. See Union Labor Life Insurance Company v. Pireno, 458 U.S. 119 (1981); Arizona v. Maricopa County Medical Society, 457 U.S. 332 (1981). Soon however, aggrieved individuals began to request antitrust scrutiny regarding the behavior of individual hospitals or physicians. See Jefferson Parish Hospital District #2 v. Hyde, 466 U.S. 2 (1984); Weiss v. York Hospital, 745 F.2d 786 (3rd Cir. 1984).

87 See Patrick v. Burget, 108 S.Ct. 1658 (1988). With the decision of Patrick v. Burget, the Supreme Court indicated that the state action doctrine would not immunize state-required peer review activities by private hospital staffs from antitrust litigation unless states provided official review of such private decisions. Although the Health Care Quality Improvement Act of 1986 was intended to limit antitrust litigation regarding peer review, many observers doubt that it will have this effect. See e.g. Colantonio, "The Health Care Quality Improvement Act of 1986 and its Impact on Hospital Law," West Virginia Law Review 91 (1988): 91; Blumstein and Sloan, "Antitrust in Hospital Peer Review," Law and Contemporary Problems 51 (1988): 7. Thus we can expect continued antitrust scrutiny of peer review activities. See Bolt v. Halifax Hospital Medical Center, 851 F.2d 1273 (11th Circuit), vacated and petition for rehearing en banc granted, 861 F.2d 1233 (11th Cir. 1988), reinstated in part and vacated in part en banc, 874 F.2d 755 (11th Cir. 1989). Lawyers have had some doubts about bringing antitrust suits in this area, and since the major Supreme Court decision is so recent, it is difficult to predict the amount of litigation that will occur in the future. Nonetheless, the Patrick decision can only serve as a litigation incentive.

88 See Kalish v. Mt. Sinai Hospital, 270 N.W. 2d 783 (Minn. 1978).

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These various types of litigation create serious concerns on the part of physicians involved in peer review. Even those physicians who recognize that the best long-term response to malpractice litigation is better quality medical practice, and that a physician's peers are better judges of medical care than lawyers or juries, are hesitant to become involved in peer review activities that may lead to litigation. While this is and will continue to be a significant problem even in the present system of tort litigation, it would become even more prominent if one moved to general organizational liability of hospitals. Thus, any comprehensive effort to address medical malpractice litigation must also address the legal problems raised by peer review activities.

No-Fault Patient Compensation-The drawbacks of both traditional tort litigation and of those alternatives that still rely on determinations of fault have led a number of people to advocate "no fault" approaches to medical injury compensation. As far back as the early 1970s, a number of scholars were proposing par tial or complete no-fault systems.91 The partial no fault approaches center on accelerated compensation for designated injuries that are quite likely to be avoidable.92 These particular injuries would be ex tracted from the tort regime and be compensated administratively. Medical adversity insurance differs from pure no-fault or social insurance in that the providers of care remain responsible for paying for the listed outcomes-a form of "strict liability" through provider-purchased, experience-rated casualty insur ance. More recently, proponents have been able to draw on the experience of New Zealand 93 and

89 Compare Coburn v. Seda, 677 P.2d 173 (1984), with Chandra v. Sprin kle, 678 S.W.2d 804 (Mo. 1984).

99 See e.g. Beth Israel Hospital Association v. The Board of Registration in Medicine, 515 N.E.2d 574 (Mass. 1987).

91 See Havighurst and Tancredi, "Medical Adversity Insurance, a NoFault to Medical Malpractice and Quality Assurance," Insurance Law Journal 613 (1974): 69; O'Connell, "No-Fault Insurance for Injuries Arising from Medical Treatment: A Proposal for Elective Coverage," Emory Law Journal 24 (1975): 21.

92 See Tancredi, "Designing a No-Fault Alternative," Law and Contempo rary Problems 49 (1986): 277; American Bar Association, Designated Comper sable Event System: A Feasibility Study (1979). The latest iteration of the concept is the ACE (accelerated compensable event).

93 See Gellhorn, "Medical Malpractice Litigation (U.S.)-Medical Mishap Compensation (N.Z.)," Cornell Law Review 73 (1988): 170.

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