Medical Malpractice Summary Introduction

Email This Share on LinkedIn Share on Facebook Tweet This

McCullough, Campbell & Lane LLP first published the Summary of United States Medical Malpractice Law in 1991. Because of the important differences that exist among the malpractice laws of the various states, we believed that there was a need for a concise reference describing the laws of each jurisdiction.

This summary is intended as an aid to legal research, but does not constitute legal advice from the firm or create an attorney-client relationship with the reader. Our aim has been to identify in broad outline those provisions of law that affect the liability of health care providers in each jurisdiction. We have not attempted to describe all of the details that could alter the outcome of a particular case. Our imagined reader is an insurance underwriter or claim examiner who must evaluate risks and losses in many states. We have, therefore, concentrated on issues such as whether a state recognizes contributory negligence as a defense, but not on the elements necessary to plead such a defense. Mere differences of procedure are not covered. A local lawyer will be needed by anyone with responsibility for defending cases.

Research for the most recent bound edition of the Summary was completed at the end of January 1998. We examined the codified legislation of all the states and, to the extent practicable, court decisions that bear on the topics of this survey. We did not look at administrative or regulatory codes. We made every effort to ensure that sources cited in previous editions were still accurate and to identify new legislation and cases. Our formal research efforts were made easier by knowledge acquired in the course of practice. McCullough, Campbell & Lane LLP represents excess medical liability carriers in connection with risks across the country, so we travel regularly and have the opportunity to discuss changes in the law with lawyers, risk managers, and insurance personnel in many (but not all) states.

For each state and the District of Columbia, we reviewed (1) the statute of limitations, (2) the law of contributory or comparative negligence, (3) whether the liability of tortfeasors is joint or several, (4) the law of contribution, (5) theories used to hold hospitals vicariously liable for the acts of physicians who are not employees, (6) standards for expert testimony, (7) limitations on damages, (8) limitations on attorneys’ fees, (9) whether courts will compel claimants to accept the periodic payment of damages, (10) whether the collateral source rule is in effect, (11) whether pre-judgment interest can be awarded, (12) whether the state has a patient compensation fund or physician insurance program that may affect liability, (13) whether state and local government health care providers enjoy immunity from liability, and (14) whether medical malpractice claims must be submitted to arbitration. We believe that these topics cover the principal legal variables that affect risk.

We will continue to review changes in the malpractice laws of the fifty states, and to update our research periodically. All states were revised as of February 6, 1998. As future revision takes place, the date of the latest change will be shown at the bottom of each state’s page. We appreciate your comments and suggestions regarding changes in the law of your state, any errors that you may discover in our research, and topics needing further amplification. With your help, we hope to keep this summary current. We have added a mailing list and discussion page to facilitate communication with readers. Go there to sign up for email notification when changes are made to the Summary, or to leave questions, comments, or observations. We also appreciate receiving email about this publication at summary@mcandl.com.

Paul S. Turner
McCullough, Campbell & Lane LLP