Indiana Law Review


Reform Revisited: A Review of the Indiana Medical
Malpractice Act Ten Years Later

James D. Kemper*
Myra C. Selby**

Bonnie K. Simmons***

I. Introduction

In the mid- 1 970' s, both the private and public sectors nationwide

became alarmed at the significant costs associated with malpractice li-

ability in the health professions.' Indiana, one of the first states to seek

a legislative solution to the perceived problem of increasing costs, enacted

the Indiana Medical Malpractice Act^ (Act) in 1975. However, a nation-

wide reassessment of the malpractice controversy has been triggered in

the mid- 1 980' s by the recurrence of a marked increase in malpractice claims

against physicians and hospitals and by reports of drastic increases

in the cost of liability insurance. The direction of current solutions to

the malpractice controversy is decidedly different from earlier reforms.

In the 1980's, the focus of legislative solutions is not on wholesale

tort law reform. Rather, the activity is directed toward reassessing the

reforms made in the 1970's with a goal of making additional reforms
to respond to the economic realities of the 1980's. The conflicting forces

of plaintiffs seeking larger recoveries and defendants attempting to limit

recovery make medical malpractice litigation an obvious area for con-
tinued efforts for legislative reform.

It is important that legislators and lobbyists reflect on the history

of the reforms of the 1970's before considering what changes are ap-

propriate in the 1980's. Although evaluations of the success of earlier

medical malpractice reforms must be subjective, an objective assessment

of the impact of the reforms can be made. This Article will review the

reform in medical malpractice litigation in Indiana by considering the

*Partner, Ice, Miller, Donadio & Ryan, Indianapolis. B.S., Indiana University, 1969;
J,D., Indiana University, 1971.

**Associate, Ice, Miller, Donadio & Ryan, Indianapolis. B.A., Kalamazoo College,
1977; J.D., University of Michigan, 1980.

***Associate, Ice, Miller, Donadio & Ryan, Indianapolis. B.S., Indiana University,
1978; J.D., Indiana University, 1985.

^See, e.g., Nat'l Center for Health Statistics, Dep't of Health, Education,
& Welfare, Medical Malpractice Closed Claim Study 1976 (1978); Nat'l Center for
Health Statistics, Dep't of Health, Education & Welfare, Medical Malpractice
Closed Claim Study 1970 (1973).

^IND. Code §§ 16-9.5-1-1 to -10-5 (1982).

1129



1130 INDIANA LAW REVIEW [Vol. 19:1129

original purpose of the Act, the functioning of the medical review panel

established by the Indiana statute, constitutional challenges to the Indiana

statute, and the effect of changes in federal law on state malpractice

reforms.

II. The Purposes and Goals of the Indiana Act

The Indiana Medical Malpractice Act was passed in response to an
outcry over drastic increases in malpractice insurance premiums for health

professionals.^ The legislature believed that these increased costs, along
with the unavailability of insurance for some health professionals, caused
health care providers to discontinue services, thereby reducing the health

care services available to the public."^ The Act was intended to protect

the public from decreased services by protecting health care providers

from the cancellation of insurance coverage.^

While there has been no agreement among commentators as to the
cause of the increased premiums,^ to date at least thirty states have

enacted legislation attempting to resolve this perceived crisis."^ In an effort

to balance the interest of the private plaintiff with the public's interest

in preserving the health care industry, the legislative solution in Indiana

was twofold. The Act provides for (a) limiting the amount of damages

and attorney's fees that a plaintiff can recover and (b) a process of

screening malpractice claims by a medical review panel.

^

The effectiveness of the Act and how well the solution has worked

^LaCava, A Legislative Response: The Indiana Experience, 3 Health Span 14, 14
(1986).

''Rohrabaugh v. Wagoner, 274 Ind. 661, 667, 413 N.E.2d 891, 894 (1980); Johnson

V. St. Vincent Hosp., 273 Ind. 374, 387, 404 N.E.2d 585, 594 (1980).

'Id.

^Some authors suggest the rise in cost was due to a widespread reaction to one

company's poor investments. See Neubauer & Henke, Medical Malpractice Legislation:
Laws Based on a False Premise, Trial, Jan. 1985, at 64, 65. Others reason that an

increase in the size and frequency of claims led to the rise in premiums. See Sloan, State

Responses to the Malpractice Insurance "Crisis" of the 1970s: An Empirical Assessment,
9 J. OF Health Pol. Pol'y & L. 629 (1985).

^It is difficult to determine the exact number of states enacting such legislation

because several states are in the process of revising, enacting, or revoking their legislation.

A state by state statutory review is beyond the scope of this article. However, it is clear
that Indiana is not alone in attempting to remedy the medical malpractice crisis. See

generally Klein, A Practical Assessment ofArizona's Medical Malpractice Screening System,
1984 Ariz. St. L.J. 335, 343. For examples of comparative legislation in other states,

see Ariz. Rev. Stat. Ann. §§ 12-561 to -569 (1982 & Supp. 1985); Md. Cts. & Jud.
Proc. Code Ann. §§ 3-2A-01 to -09 (1984 & Supp. 1985); Mass. Gen. Laws Ann., ch.
231, § 60B (West 1985 & Supp. 1986).

»lND. Code §§ 16-9.5-1-1 to -10-5 (1982).



1 986] MEDICAL MALPRACTICE ACT 1131

have been subject to considerable debate.^ Panels, in theory, handle

claims more quickly with lower costs than trial litigation.'^ Moreover,

they encourage settlement of meritorious claims while discouraging base-

less claims. '^ Critics, however, point out that panel review adds another

layer of proceedings, is likely to involve substantial legal expenses, and

may encourage the filing of claims by providing an informal, initially
less expensive proceeding. '^ While the use of a panel has not been proven

to encourage settlement, to resolve cases more quickly, or to reduce the

size of awards or number of lawsuits filed, '^ a panel may serve other
purposes. It can be a tool for early trial preparation, and because the

opinion of the panel is nonconclusive evidence at a subsequent trial, '^

use of the panel may encourage thorough preparation of evidence early
in litigation.

The impact of the Indiana Act on medical malpractice litigation has

been more dramatic than merely a change in procedure, however. The

changes appear to reflect an attitudinal change toward the purpose of

tort law. It may no longer be the sole purpose of tort resolution in the
medical malpractice area simply to compensate the victim for damages

and deter harmful behavior. There now seems to be a legislatively-
recognized goal of promoting the economy and protecting the health

care industry. Compensation for harm resulting from deviation from the
standard of care required of a doctor now seems to be tempered by an
economically motivated leveler.

It is beyond the scope of this Article to speculate whether this

legislative action simply replaces historical societal limitations. In the

past, close, lifelong doctor-patient relationships functioned to restrain

patients from filing medical malpractice claims. In today's more im-

personal society, such lawsuits are no longer taboo. Also, the ability of

a community to process information about the competence of a doctor

no longer seems sufficient to "weed out" or control less competent

doctors. To insure that all victims of medical malpractice can recover
in today's more Htigious atmosphere, the Act limits the amount of

damages and attorney's fees recoverable by the plaintiff and provides

for panel review of malpractice claims before lawsuits are filed. *^

"^See LaCava, supra note 3,

'°5ee Sloan, supra note 6.

"'5ee LaCava, supra note 3, at 16.

^^See Sloan, supra note 6, at 636.

'^C/". Daughtrey & Smith, Judges' Views of Medical Malpractice Review Panels, Va.
B.A.J. , Spring 1985, at 14; Klein, supra note 7.

"•IND. Code § 16-9.5-9-9 (1982).
''See id. §§ 16-9.5-1-1 to -10-5.



1132 INDIANA LAW REVIEW [Vol. 19:1129

III. Functioning of the Act

A. How Medical Panels Work—The Statutory Scheme
Essentially, the Indiana Act calls for a specific timetable. Before

the plaintiff may file any action in court, he must first file a proposed
complaint with the Indiana Department of Insurance. ^^ Upon receipt of
the proposed complaint, the Department of Insurance will, within ten

days, forward a copy to each health care provider named as a defendant. ^^

After twenty days from the filing of the proposed complaint with the

Department of Insurance, either party may serve on the Commissioner
of Insurance by registered or certified mail a request for the formation

of a medical review panel. '^

Within fifteen days of filing this request, the parties should select

a chairperson by agreement.*^ If they cannot agree on the selection, the

Act states that,

either party may request the clerk of the supreme court to draw
at random a list of five (5) names of attorneys quahfied to
practice and presently on the rolls of the supreme court and

maintaining offices in the county of venue designated in the

proposed complaint or in a contiguous county. ^^

The party making such a request is required to pay a fee.^^ Beginning

with the plaintiff, each side then has five days to strike a name from
the list. If a party does not strike a name, the opposing side may request
in writing that the clerk strike for the party, and the clerk must strike. ^^

Striking continues until one name remains. Within five days after the
last name remains, the clerk must notify that person and the parties of
the name of the selected chairperson.^^ The chairperson then must either
send a written acknowledgment of his appointment to the clerk within

fifteen days, or if he does not want to serve, he must show that service

would constitute an unreasonable burden or undue hardship. ^"^

After the chairperson is selected, the parties must select the other

panel members.^^ Within fifteen days after the chairperson is selected,

'Hd. §§ 16-9.5-9-1, -2.

''Id.

''Id.

''Id. § 16-9.5-9-3(a).

''Id.

'Ud.

''Id.

''Id. § 16-9.5-9-3(a), (c).

''Id. § 16-9.5-9-3(b)(lH2).



1986] MEDICAL MALPRACTICE ACT 1133

each side chooses one health care provider to serve on the panel. Within

fifteen days of their selection, these two providers then select a third

provider for the panel. ^^ If the two providers do not choose a third

panelist, the chairperson selects the third provider.^^

Challenges without cause may be made to any selection within ten
days after selection of that panel member.^^ If two such challenges are

made, the chairperson within ten days proposes a special hst of three

quahfied paneHsts.^^ Each side then has ten days to strike one of the

three, with the party whose appointment was challenged striking last.^^

When the final member is named, the chairperson should, within five
days, notify the Commissioner of Insurance and the parties of the names

and addresses of panel members and the date on which the last member
was selected.^' The panel is then required to render its expert opinion

within 180 days after the selection of the last member. ^^

The entire panel review process should take nine months. ^^ However,

the reality is much different from the mechanism set out in the Act.

B. How Medical Panels Work—Reality
The nine-month statutory timetable is rarely, if ever, met. One reason

is that the large number of complaints filed has caused delays. The

number of complaints filed has skyrocketed since the Act was passed.

In 1975, the year of enactment, only one complaint was filed, but 773

complaints were filed with the Commissioner in 1985.^^ As of December

31, 1985, 4,225 complaints had been filed; of those, only 1,171 were

closed. ^^ An average complaint took 23.4 months to go through the
process as of May 31, 1983.^^ These delays are not simply the fault of
'*the system;" delays can also be caused by the actions of the parties

and of the chairperson, as well as by outside circumstances.

The parties themselves cause delays when the parties do not follow

the statutory procedures for panel review. For example, delays arise

^'Id. § 16-9.5-9-3(b)(2).

^'Id.

''Id. § 16-9.5-9-3(b)(3).

'^Id.

'°Id.

''Id. § 16-9.5-9-3(b)(4).

''Id. § 16-9.5-9-3.5.

''See id. § 16-9.5-9-3.

"^See Patients Compensation Div., Ind. Dep't of Ins., Year End Report and

Actuarial Study (1985) [hereinafter Year End Report].
"Id.

'^Cha V. Warnick, 476 N.E.2d 109, 112 (Ind. 1985), cert, denied, 106 S. Ct. 249

(1985); see also Williams, Indiana Medical Malpractice Act—The Developing Law, 27
Res Gestae 494, 497 (1984).



1134 INDIANA LAW REVIEW [Vol. 19:1129

when the complaint is improperly filed by the plaintiff.^^ In addition,
the parties rarely request the formation of the panel as quickly as the

Act allows.^^ Further delays occur because the parties rarely invoke the

procedure under the authority of the clerk of the supreme court to select

a chairperson.^^ Moreover, the nominations of the health care providers

are often not made in fifteen days/° And finally, delays by the parties
in submitting evidence also contribute to the time lag/^

The chairperson of the panel also has a significant impact on the
flow of the case regardless of the actions of the parties. Novice chair-

persons may take a considerable amount of time to become familiar
with the Act and may fail to be aware of statutory deadlines or to
apply those deadlines strictly."^^

Delays can also occur after the panel is convened. For example,

there can be delays in receiving evidence. Although all evidence submitted

to the panel must be in written form, the Act provides that after

submission of all evidence, either party may convene the panel in order
to question panel members at a time and place agreeable to the panelists. "^^

Because the panelists may have other responsibilities, significant delays
can occur in finding a time and place agreeable to them."^

Further delays may be created when either of the parties or the
Insurance Commissioner calls into play the provisions of Chapter 10 of

the Act. Either party may file a motion in a court having jurisdiction
over the subject matter to determine questions of *'any affirmative defense

or issue of law or fact that may be preliminarily determined under
Indiana Rules of Procedure" or to compel discovery."*^ The panel pro-

ceedings are then stayed until the court rules on the motion."^^ Court

involvement at this point is Hmited to the matters set out in the statute. "^^

Once the court rules on the motion, its jurisdiction ends, and the panel

resumes its consideration of the case."^^ The court's jurisdiction is not

properly invoked again until a complaint is filed, after the panel issues

an opinion.^^

^'A total of 76 claims filed from 1975 through 1985 involved problems with the

initial complaint. Year End Report, supra note 34.
^^Pinkus, The Role of the Panel Chairman, 1984 Ind. Continuing Legal Educ.

Forum on Presenting a Case Before Medical Review Board IV-1, IV-7.
'"Id.

'°Id.

''Id.

'Ud.

nNT>. Code § 16-9.5-9-5 (1982).
*'^See supra notes 37 to 43 and accompanying text.

^'Ind. Code § 16-9.5-10-1 (1982).
''Id. § 16-9.5-10-4.

''Id. § 16-9.5-10-2.

''Id. §§ 16-9.5-10-1 to -4.

"See Johnson v. Methodist Hosp. of Gary, 547 F. Supp. 780, 782 (N.D. Ind. 1982).



1986] MEDICAL MALPRACTICE ACT 1135

Some of these delays can be discouraged by the use of judicially-
imposed sanctions, for example, fines against the delaying parties or

judicial reprimands. Although the Act does not contain specific sanctions

for a party's failure to comply with its provisions, the Act does state:

A party, attorney or panelist who fails to act as required by
this chapter without good cause shown is subject to mandate
or appropriate sanctions upon application to the court designated
in the proposed complaint as having jurisdiction.^^

Under Chapter 10 of the Act, a party may make a motion for sanctions,
but the procedure for the court's ruling on such a motion can create

its own problems. A judicial decision on a motion made under Chapter
10 is to be rendered within thirty days after the matter is heard. ^' If

there is no hearing, the decision must be rendered within thirty days

after the last written response to the motion is filed. ^^ However, the

Act does not provide explicit sanctions for the failure of a judge to

render a decision within the prescribed time. At least one Indiana court

has concluded that this time limitation and its purpose are similar to

those provided for other civil actions under Indiana Trial Rule 53.1(A)."

The court of appeals has held that the appropriate sanction for a judge

who fails to rule on a Chapter 10 motion within the prescribed time
period is disquahfication under trial rule 53.1.^"* Perhaps other analogies

as to appropriate sanctions could be persuasively made.

C Statute of Limitations
In addition to the procedural structure of the Act, another important

provision is the time limitation for bringing a medical malpractice action.

The Act provides:

No claim, whether in contract or tort, may be brought against
a health care provider based upon professional services or health

care rendered or that should have been rendered unless filed

within two (2) years from the date of the alleged act, omission,

or neglect, except that a minor under the full age of six (6)

years shall have until his eighth birthday in which to file.^^

This period is triggered by the occurrence of the act, omission or neglect,

not by the discovery that the cause of the injury was a health care

=°IND. Code § 16-9.5-9-3. 5(b) (1982).

''IND. Code § 16-9.5-10-3.

"Hepp V. Pierce, 460 N.E.2d 186, 189 (Ind. Ct. App. 1984).

''Id.

«IND. Code § 16-9.5-3-1 (1982).



1136 INDIANA LAW REVIEW [Vol. 19:1129

provider's act, omission or neglect. ^^ However, where the entire conduct

of the doctor constitutes fraudulent concealment, the doctrine of equitable

estoppel may prevent a defendant doctor from taking advantage of his
deceit by barring the doctor from asserting the statute of Hmitations as

a defense. ^^ Fraudulent concealment includes both affirmative acts to

conceal information and passive failure to disclose information required

by the duties of the doctor-patient relationship.^^ Where the concealment
is passive, the concealment is considered to end when the doctor-patient
relationship ends; at that time the statute of limitations begins to run.^^

The statute of limitations may also be tolled under a continuing
wrong theory. As described in Frady v. Hedgcock,^ '*[w]hen an entire
course of conduct combines to produce an injury, the conduct may
constitute a continuing wrong so as to delay the running of the statute

of limitations. . . . Under this theory, the statutory period commences

at the end of the continuing wrongful act."^^ In Frady, a wrongful

death action was brought under the Act against a physician whose patient

had died of renal failure, thought to be caused by the allegedly excessive

medication prescribed by the physician. The physician last saw the patient

for treatment more than one month before her death. A complaint was
filed more than two years after the date of her last visit, but less than

two years after her death. The court of appeals found that a material

issue of fact existed as to whether the doctor's treatment was a continuing

wrong as late as the date of death, so as to toll the limitation period

until the date of death. ^^ The court also made clear that the statute of
limitations of the Act could apply to a wrongful death action if mal-

practice was the basis of the action. The statutory time period for

wrongful death actions would be inappHcable in this case.^^ Therefore,

wrongful death actions based upon medical malpractice must be filed

within two years of the act, omission, or neglect, not within two years

of the date of death.

^

A recent decision by the Indiana Court of Appeals has an uncertain
impact on interpretation of the statute of hmitations provision. In Barnes

V. A. H. Robins Co.,^^ the court of appeals adopted a '^discovery" rule

^^Colbert v. Waitt, 445 N.E.2d 1000, 1002 (Ind. Ct. App. 1982).

''Id. at 1002-03.

'^Id. at 1003.

'^Id.; Weinstock v. Ott, 444 N.E.2d 1227, 1236 (Ind. Ct. App. 1983).

^"497 N.E.2d 620 (Ind. Ct. App. 1986).

''Id. at 622.

"/</. at 622-23.

'Ud. at 622.

''Id.

"476 N.E.2d 84 (Ind. Ct. App. 1985).



1986] MEDICAL MALPRACTICE ACT 1137

and found that the statute of Hmitations commenced when the plaintiff
knew or should have discovered that an injury was suffered and was
caused by a product or act of another, in this case, an intrauterine

device.^^ The court limited this rule to situations where "[the] injury to
a plaintiff [was] caused by a disease which may have been contracted
as a result of protracted exposure to a foreign substance. "^"^ In Walters

V. Owens-Corning Fiberglass Corp. ,^^ the United States Court of Appeals

for the Seventh Circuit held that exposure to asbestos over a twenty-

five year period constituted "protracted exposure to a foreign substance"

and allowed the tolling of the statute of limitations until the time of

discovery, based on Barnes. ^'^ Future malpractice plaintiffs may use these
decisions to argue for broader appHcation of such a rule where the

statute of limitations has otherwise expired and may succeed in having
the discovery rule apply to occurrences of medical malpractice.

D. Scope of the Act

The Indiana statute is extremely restrictive. It does not apply to all

defendant-doctors, and it does not cover all occurrences of malpractice.

This strictness causes confusion and statute of limitations problems when

the plaintiff is trying to decide if his action is subject to panel review

under the Act or if he should proceed directly in court.

1. Qualified Health Care Providers.—The Act applies only to health
care providers quahfied therein.^" If the health care provider is not included

in the coverage of the Act, the Act is inapplicable and the patient

must pursue remedies outside the Act.^' A qualified health care provider
is one who files proof of financial responsibility and pays the surcharge
provided for in the Act.^^ If the patient files his complaint in a timely

fashion with the Department of Insurance, but the defendant is not a

quahfied provider under the Act, the filing is apparently ineffective for

torts statute of limitation purposes. Although the Act provides for tolling

the statute of Hmitations upon filing of a proposed complaint until ninety

days after the panel opinion is issued,'^ this provision is inapplicable if

the provider is not quahfied. The result is that the statute of Hmitations

will continue to run, and if the time is near, as it inevitably is, it may
be too late to file a complaint in court.

^Id. at 87-88.

"•'Id. at 87.

^«781 F.2d 570 (7th Cir. 1986).

'•''Id. at 572.

™lND. Code § 16-9.5-1-5 (1982).
''Id.

'^Id. § 16-9.5-2-1.

'Hd. § 16-9.5-9-1.



1138 INDIANA LAW REVIEW [Vol. 19:1129

Certainly the reverse is true. Where the defendant health care provider
is qualified, the action must proceed under the Act.^"^ The plaintiff's

proposed complaint must be filed with the Department of Insurance. If

the complaint is mistakenly filed in court instead, it may be subject to
summary judgment. ^^ If the statutory time limit expires after the filing
in court but before dismissal of the action, the plaintiff cannot start

over and file the complaint with the Department of Insurance.^^ In other

words, if the plaintiff files a complaint within the prescribed time limit

but in the wrong forum, it may be too late to correct the mistake. This
has been held true in one case despite evidence that the plaintiff had

been told incorrectly by the Department of Insurance that the health

care provider was not qualified, leading the plaintiff to file the action

in the wrong forum.
'^'^

The Department of Insurance works within a limited budget and

with limited resources. ^^ Beyond the expected human errors that can
occur in recordkeeping, the Act contains provisions that complicate

matters even more. The Act provides for a 180-day grace period from

the termination of insurance coverage and a showing that coverage is

being renewed. ^^ Because of this grace period, it may be difficult for
a plaintiff to determine if a defendant is qualified under the Act. Because

of these complications as well as the unfortunate result to the plaintiff

if he files a complaint in the wrong forum, plaintiffs are commonly
advised to file both with the court and the Department.^°

2. Situations Covered by the Act.—The Act contains very broad
definitions, which make many types of conduct subject to its provisions.
*

'Malpractice" is defined as "any tort or breach of contract based on

health care or professional services rendered, or which should have been

rendered, by a health care provider, to a patient. "^^ "Health care" is

broadly defined as "any act or treatment performed or furnished, or

which should have been performed or furnished, by any health care

provider for, to, or on behalf of a patient during the patient's medical

care, treatment, or confinement. "^^

Although, clearly, typical acts of malpractice are covered by the

''Id. §§ 16-9.5-1-5, -9-2.

''See Whitaker v. St. Joseph's Hosp., 415 N.E.2d 737, 742-45 (Ind. Ct. App. 1981).

'"Id.

"Id.

^^Clegg, Insurance Commissioner's Role, 1984 Ind. Continuing Legal Educ. Forum

ON Presenting a Case Before Medical Review Board II-l, II-7.
^'IND. Code § 16-9.5-4-l(e) (1982).
^^See Clegg, supra note 78, at II-7; Murphy, Pitfalls in Medical Malpractice Panel

Practice, 29 Res Gestae 178, 178 (1985).

«'lND. CofDE § 16-9.5-l-l(h) (1982).

^Ud. § 16-9.5-1-1(1).



1986] MEDICAL MALPRACTICE ACT 1139

Act, a curious line of cases has found less typical occurrences also

covered.^^ In Ogle v. St. John's Hickey Memorial Hospital, ^"^ the rape

of one patient by another, allegedly caused by negligence on the part

of the hospital, was determined to be a tort action subject to the Act.^^

In Methodist Hospital of Indiana v. Rioux,^^ the Act was found to

apply to a slip-and-fall action of a patient against a hospital. ^^ The

Rioux decision met with disapproval in Winona Memorial Foundation
V. Lomax,^^ a later, similar case. The Lomax court found that the Act
did not apply where the fall occurred during a time when the patient
was not receiving treatment or care, nor was attended by any hospital

employees. ^^ The Lomax court felt that literal application of the Act to
these circumstances would be absurd, contradictory, and not within the

intent of the legislature.^^ These conflicting interpretations are unresolved.

Certainly factors of each decision should be weighed by plaintiffs in

trying to decide where to file and by defendants in deciding whether to

challenge a court action in order to obtain panel review.

Another example of the less typical occurrences found to be covered

by the Act arose in Detterline v. Bonaventura.^^ The court of appeals

found that in an action for wrongful commitment to a mental hospital,

the claim must be submitted to a medical review panel under the Act.^^

This decision required a broad reading of the statutory definition of

''patient" because the plaintiff had never been examined or seen by the

defendant doctor. The patient's wife had arranged for the doctors to

sign the commitment papers; her action on the patient's behalf created

a sufficient relationship to qualify the plaintiff as a patient. ^^

5. Multiple Defendants.—The Act also creates potential problems
when multiple defendants are involved. Compliance with the Act is

difficult when some of the defendants are qualified health care providers

and some are not. The defendants falling under the Act should be named
in a complaint filed with the Department of Insurance, but those not

''See Ogle v. St. John's Hickey Memorial Hosp., 473 N.E.2d 1055 (Ind. Ct. App.

1985); Detterline v. Bonaventura, 465 N.E.2d 215 (Ind. Ct. App. 1984); W^inona Memorial

Found. V. Lomax, 465 N.E.2d 731 (Ind. Ct. App. 1984); Methodist Hosp. of Ind. v.

Rioux, 438 N.E.2d 315 (Ind. Ct. App. 1982).

«M73 N.E.2d 1055 (Ind. Ct. App. 1985).

''Id.

M38 N.E.2d 315 (Ind. Ct. App. 1982).
''Id.

M65 N.E.2d 731 (Ind. Ct. App. 1984).
'Hd. at 741-42.

^Id. at 734-39.

^'465 N.E.2d 215 (Ind. Ct. App. 1984).

^^Id. Sit 216.

''Id. at 219.



1140 INDIANA LAW REVIEW [Vol. 19:1129

covered by the Act will be sued in a court.^'^ In this way, the plaintiff

can file against all possible defendants before the statute of Hmitations

runs out.^^ The defendants in the court proceeding will probably want

to obtain a stay until a panel opinion has been issued.^^ This allows

defendants not only additional time, but also the benefit of learning

about the case through its development before the panel.
^"^

4. Impact of Recent Amendments. — Recent amendments both to
the Act and to the Indiana comparative fault statute affect both the

amount of damages a plaintiff can recover and a defendant's liability

under the Act. Effective September 1, 1985, plaintiffs with claims of

$15,000 or less may choose not to proceed before a panel.^^ However,
if the plaintiff chooses to go straight to court, he cannot recover more

than $15,000.^^ This new provision allows for a quicker, less costly
settlement where the amount involved is small. If the plaintiff discovers

after the action has begun that the bodily injury is more serious than

previously believed and that $15,000 is insufficient compensation, the

plaintiff may move that the action be dismissed without prejudice, and
upon dismissal, the plaintiff may proceed as usual under the Act.^°° In
such a case, the statute of limitations is extended by 180 days.^^^ A 1985
amendment to Indiana's comparative fault statute provides that the
comparative fault statute does not apply to an action brought under the

Medical Malpractice Act.'^^ Thus a malpractice plaintiff cannot invoke

the provisions of the comparative fault statute, and a malpractice defend-

ant may be able to utilize defenses such as contributory negligence. ^^^

E, How to Participate in the Panel: Cautions and Encouragements

In litigating a malpractice case under the Act, parties can take alter-

native stances based on their feelings about the panel. They may choose to
participate as little as possible, or they may choose to use the panel
proceedings as an opportunity to prepare for trial. The first alternative

cannot be carried too far, however, without creating the threat of

sanctions.'^

^'^See supra notes 70 to 80 and accompanying text.

^^Shula, How to Present Defendant's Case to the Medical Review Panel, 1984 Ind.
Continuing Legal Educ. Forum on Presenting a Case Before Medical Review Board

III-l, III-2.

•""Id. at III-2.

^'Id.

'«Ind. Code § 16-9.5-9-2. 1(a) (Supp. 1985).
^''Id.

"^Id. § 16-9.5-9-2. 1(b).

'<"M § 16-9.5-3-l(b).

•°^/af. § 34-4-33-1.

'""'See id.

^°*See supra notes 50-54 and accompanying text.



1986] MEDICAL MALPRACTICE ACT 1141

The Act also provides that the panel consider the issues as charged

in the complaint when determining its opinion. '^^ Although the panel
members will concentrate on submissions and medical records, not merely
the complaint, ^^^ any complaint filed in court after panel review should

duplicate the proposed complaint considered by the panel. '^"^ If new
theories are submitted to a court after the panel opinion is rendered,

the defendant has a basis to argue for reconvening the panel and

submitting the new claims to the panel. ^^^ Furthermore, failure to submit
all issues and evidence to the panel is likely to insure an unfavorable

decision from the panel. Because the panel opinion is admissible at trial

as nonconclusive expert evidence, ^^^ a party who submits little or no
data to the panel risks an unfavorable panel opinion that has a significant

effect on the fact-finder at trial. Courts from other jurisdictions have

held that a nonparticipating party cannot reveal to the jury that no

evidence was presented to the panel. ^^° The delay and expense incurred

at the panel level should be balanced with these results. The degree of

nonparticipation may be limited by these considerations.
However, the disadvantage of plunging into full preparation at the

panel stage is the risk of revealing too much to opposing parties. The
use of affidavits from experts may lead to early deposition of these
people, for example. Balancing this threat, however, is the availability

of the three panel members to testify as witnesses at trial and of up

to three opinions for submission at trial.^^' (The Act appears to allow

multiple opinions from the panel. )"^ The purposes of the Act, then, are

probably better served by full participation.

Because the panel is not bound by formalities, the parties can

encourage the progress of the proceedings. Because the chairperson is

the only attorney on the panel, "^ legal issues and submissions should

be restricted to that person, who can present them as appropriate to

'o^lND. Code § 16-9.5-9-7 (1982).
'"^See Shula, supra note 95, at III-ll.

'°Vc?. at III-12.

•°^IND. Code § 16-9.5-9-9 (1982).
'""See, e.g.. Phoenix Gen. Hosp. v. Superior Court, 138 Ariz. 504, 506, 675 P.2d

1323, 1325 (1984) (en banc); Herrera v. Doctor's Hosp., 360 So. 2d 1092, 1096 (Fla.

Dist. Ct. App.), aff'd, 367 So. 2d 204 (Fla. 1978).

•"Ind. Code § 16-9.5-9-9 (1982); see also Hobbs v. Tierney, 495 N.E.2d 217, 222

(Ind. Ct. App. 1986) (discussion of panel member's competency as an expert witness to

testify in malpractice actions).

''^See Kranda v. Houser-Norborg Medical Corp., 419 N.E.2d 1024, 1034 (Ind. Ct.

App.) reh'g denied, 424 N.E.2d 1064 (Ind. Ct. App. 1981), appeal dismissed, 459 U.S.

802 (1982).

"^Ind. Code § 16-9.5-9-3 (1982). The other panel members are health care providers,

although they may evidently be physician-attorneys.



1142 INDIANA LAW REVIEW [Vol. 19:1129

the Other members. Direct discussion about legal issues with the medical

members of the panel can lead to unnecessary confusion and risks
misunderstanding. Also, the parties may find it appropriate to monitor
the chairperson's compliance with statutory deadlines, particularly when
dealing with an inexperienced chairperson. In addition, parties can control

the speed of the formation of the panel through the selection of the

chairperson and the other members by prompt contact with the clerk
of the court and, subsequently, with the chairperson.

Parties should also recognize that the Department of Insurance acts

only as a recordkeeping body.*'"* The Commissioner has no control or
interest in creation of the panel, compelling discovery, distribution of

evidence to panel members, or determination of sanctions on opposing

parties.
*^^ The Department should not be expected to distribute infor-

mation, and parties should not involve that body unnecessarily.

Parties must submit evidence to the panel in written form only.^^^

Commonly, the chairperson will set up a staggered submission schedule
beginning with the plaintiff.''^ In addition to medical records, parties

may wish to include medical literature, treatises, and letters from ex-
perts.'*^ The parties may also want to provide the chairperson with briefs
on legal issues which the chairperson is then required to explain to the

other panel members. ^^^

Although no trial or formal hearing occurs, either party can convene

the panel at a time and place agreeable to all the panel members and

question panel members about any matter relevant to the issues. '^° Aside

from the potential for delays in finding a suitable time and place, ^^^

this provision can be advantageous to the parties. The practical appU-

cation of this provision is expansive. Some parties make formal records
of the meeting hoping to use statements made by panel members to
impeach the members at trial if the panel opinion is adverse. ^^^ Meetings

can also be used to discover potential biases and to determine areas of

uncertainty. A party may find it appropriate at panel proceedings to
guide a chairperson so that arguments are not presented and only the

legitimate inquiry allowed by the Act occurs.

The opinion of the panel is no more than an opinion. '^^ It is

^^*See supra note 80.

"^IND. Code § 16-9.5-9-4 (1982).
'"See Shula, supra note 95, at III-9.

"«lND. Code § 16-9.5-9-4 (1982).

'^°M § 16-9.5-9-5.

'^'See supra notes 43 to 44 and accompanying text.

'^^Murphy, supra note 80, at 179-80; Shula, supra note 95, at III-8, n.l.

'"IND. Code §§ 16-9.5-9-7, -9 (1982).



1986] MEDICAL MALPRACTICE ACT 1143

considered expert testimony, not a judgment or determination of either

legal issues or damages. ^^"^ The panel has the following four statutory
options for its opinion:

(a) The evidence supports the conclusion that the defendant

or defendants failed to comply with the appropriate standard

of care as charged in the complaint.

(b) The evidence does not support the conclusion that the
defendant or defendants failed to meet the applicable standard

of care as charged in the complaint.

(c) That there is a material issue of fact, not requiring expert

opinion, bearing on liability for consideration by the court or

jury.

(d) The conduct complained of was or was not a factor of

the resultant damages. If so, whether the plaintiff suffered:

(1) any disability and the extent of duration of the dis-

ability, and

(2) any permanent impairment and the percentage of the

impairment. '^^

A party who still wishes to go to trial after issuance of the panel
opinion must file his complaint in court ninety days following the receipt

of the opinion. ^^^ Even with a favorable panel opinion, a plaintiff may
wish to file a complaint in court to avoid statute of limitations problems

if a settlement is delayed. A defendant of course must simply wait for
the plaintiff's next steps; an opinion favorable to the defendant is no

guarantee that the plaintiff will stop pursuing his claim.

IV. Constitutionality

The Indiana Act withstood early constitutional challenges shortly

after its enactment. '^"^ Several years later, in Warnick v. Cha,^^^ plaintiffs

were again unsuccessful in challenging the constitutionality of certain

provisions of the Act. The plaintiffs in Warnick alleged that the provisions

of the Act that require submission of a claim to a medical review panel

'^Id.

'^nd. § 16-9.5-9-7.

'^Hd. § 16-9.5-9-1.

'^^See Johnson v. St. Vincent Hosp., 273 Ind. 374, 404 N.E.2d 585 (1980).

•28No. SD 83-163 (Jasper Super. Ct. Nov. 2, 1983).



1144 INDIANA LAW REVIEW [Vol. 19:1129

before filing a lawsuit in court ^^^ violated state and federal constitutional

rights to trial by jury and access to courts as well as the equal protection

and due process clauses of the fourteenth amendment. '^

Warnick originated with the filing of a complaint for a declaratory

judgment seeking to have the Act declared unconstitutional.^^' The plain-

tiff had previously filed a medical malpractice action against the same

defendant that resulted in a default judgment against the defendant. '^^

The Indiana Court of Appeals vacated the default judgment and re-

manded the case for further proceedings.'" The Indiana Supreme Court
denied transfer. '^"^

In the subsequent declaratory judgment action, the trial court held

the Act unconstitutional on several bases. The court found that the delay

caused by mandatory submission of a malpractice claim to a medical

review panel violated the right of free access to courts as guaranteed

by the constitution of the state of Indiana and the United States Con-

stitution. The court also held that the mandatory submission provisions
violated the right to trial by jury as provided by the constitution of the

state of Indiana, '^^ as well as the equal protection and due process clauses

of the fourteenth amendment to the Constitution of the United States. '^^

On direct appeal, the Indiana Supreme Court reversed the trial court
and upheld the constitutionaHty of the Act.'^^ The court discussed Johnson

V. St. Vincent Hospital,^^^ the earlier case, stating that it had recognized

in Johnson the potential for delays created by the Act but found the

delay constitutionally permissible.'^^ The court stated, *'In other words,

the mere fact that there is a delay which may be as long as 23.4 months
from the time of filing until the time the panel opinion is rendered is

not enough to hold Indiana's Malpractice Act unconstitutional. "'"^^ The

court recognized that delays to the claimant were an acceptable trade-

off in light of the benefits to be derived. Despite the delays, the Act

was a reasonable means to achieve the stated compelling state interest

in insuring the continuation of medical services within the state and in

dealing with the malpractice insurance emergency that threatened the

'2'lND. Code §§ 16-9.5-1-1 to -9-10 (1982).
'^''Warnick, No. SD 83-163, at 1.

''^Id. at 1-2.

•"Cha V. Warnick, 455 N.E.2d 1165 (Ind. Ct. App. 1983), trans, denied.

'''See Cha, 476 N.E.2d at 109.

'''Warnick, No. SD 83-163, at 7-10.
'''Id. at 10.

"'Cha, 476 N.E.2d at 109.
'^«273 Ind. 374, 404 N.E.2d 585 (1980).

"^Cha, 476 N.E.2d at 112.

'"^Id.



1986] MEDICAL MALPRACTICE ACT 1145

availability of these services. Therefore, the Act was not unconstitu-

tional. ^"^^ The lynchpin of the court's analysis of the constitutionality
issue was that the plaintiffs failed to show that a medical malpractice
insurance emergency no longer existed in the state. Thus, the Johnson
analysis that the Act was a reasonable means to respond to that emergency
still applied. '^2

Warnick seems decisively to foreclose any attack on the constitu-

tionahty of the Act based on delays resulting from the medical review

panel process. However, other aspects of the panel procedure may be
subject to constitutional challenge. Warnick seems to suggest, though,

that any such challenge, in order to be successful, would have to rest

on evidence that invalidates or undermines the legislative judgment un-
derlying the Act.'^^

Interestingly, other provisions of the Act were not challenged in

Warnick. For example, the provision limiting a plaintiff's recovery to

a certain amount was not challenged by the Warnick plaintiffs. Indiana

remains one of a relatively small number of states that limit the amount
of damage awards to plaintiffs in medical malpractice cases. '"^"^

V. Beyond the Panel

It may never be possible to determine conclusively whether the
statutory measures serve the goals for which they were intended. Despite

the limitation on recovery and despite the effect of panels in discouraging

lawsuits and encouraging settlements, some costs remain unaffected. Both

parties can suffer large degrees of non-monetary cost, including the

psychological and emotional strain of adversarial actions. The Act makes

the goal of compensating victims for damages secondary to that of

assuring that insurance companies can reliably and predictably insure

doctors. The long-term effect is that health care providers are encouraged

to maintain insurance because of increased protection. This continued

availability of insurance in turn increases the likelihood that plaintiffs

will actually receive damages, albeit limited damages, rather than pursuing

collection from bankrupt, uninsured defendants.

The goal of tort law of deterring malpractice is unaffected by this

statute, however. Although the threat of large monetary costs is removed

from health care providers qualified under the Act, many penalties remain
untouched. The accusation of malpractice before a panel or a court

exacts costs in the form of social stigma, loss of prestige, embarrassment.

""M at 112-113.
''^Id. at 113.

'«5ee Cha, 476 N.E.2d at 113.

'"^See Medical Malpractice: The States Respond, 9 Health Law Vigil 11, 18 (1986).



1146 INDIANA LAW REVIEW [Vol. 19:1129

anxiety, and time. These costs cannot be easily legislated away. Indeed,

the only alternative may be to cap the number of malpractice lawsuits
at a specific level—a change not likely to occur without drastic change
in the current attitude about justice.

The true deterrents to negligent behavior by a physician are probably
the non-monetary costs of an accusation of medical malpractice, not

the possibility of increased financial costs. '"^^ The accusation alone may
be a sufficiently negative sanction to change a doctor's methods of

practice. One result of the perceived medical malpractice crisis has been
the practice of defensive medicine, the increased use of costly procedures

and tests to foreclose accusations of malpractice. ^"^^

VI. Impact of Federal Law

Medical treatment decisions are not made in a vacuum. Increasingly,
medical practice is affected by changes in the economics of practice.

Prior to the advent of Medicare, ^"^"^ doctors and hospitals relied upon

patients and private insurance for reimbursement. In 1965, Medicare

came into being to pay for medical expenses for the elderly. ^"^^ The goals

of the program, to improve health care for the elderly by paying for

specified services, have come into conflict with the restrictive attitude
toward federal spending in the 1980's. Increases in the cost of medical

care, whether from inflation or technological advances, and the perceived

need for the federal government to contain those costs have led to

significant changes in federal reimbursements under Medicare.

The Health Care Financing Administration (HCFA) reimburses hos-

pitals for services covered by Medicare. ^^^ At the direction of Congress,

HCFA has now developed prospective rating formulas designed to de-
termine the amount of Medicare reimbursement according to the di-

agnosis-related group (DRG) category applicable to a patient. *^^ Because

reimbursement is no longer based on the cost of services rendered,

hospitals are encouraged to keep their costs to a minimum. ^^^

In addition to DRGs, quality control Peer Review Organizations

(PRO'S) have been estabhshed.^^^ These organizations are made up of

'^'Bell, Legislative Intrusion into the Common Law of Medical Malpractice: Thoughts
About the Deterrent Effect of the Tort Liability, 35 Syracuse L. Rev. 939 (1984).

''^Id.

''HI U.S.C. §§ 1395, 1395a to 1395xx (1982).

''^Id. § 1395WW.

'''See 97 Stat. 65 (1983); 42 C.F.R. § 412 (1985).

'''See Note, Rethinking Medical Malpractice Law in Light of Medicare Cost-Cutting,

98 Harv. L. Rev. 1004, 1006 (1985).

"^See Gosfield, Hospital Utilization Control by PROs: A Guide Through the Maze,
2 Healthspan 3 (1985), for a general history of legislation concerning review of utilization

of hospital services.



1986] MEDICAL MALPRACTICE ACT 1147

physicians and contract with the Department of Health and Human
Services to review health care provided by hospitals and to validate

reimbursements. ^^^ These reviews perform watchdog duties to insure that

hospitals do not abuse the Medicare system. ^^"^ The motivation for this

legislation was also cost efficiency. '^^ PRO review does provide some
protection from liability; the law shields physicians and other health

care providers from civil Uability "on account of any action taken . . .
in compliance with or reliance upon professionally developed norms of

care and treatment apphed by an organization under contract . . . ."^^^

The degree to which this immunity will protect a doctor is uncertain,

however.^" The primary goal of the legislation is not to change mal-

practice Uability, but to decrease costs. '^^

The philosophy underlying these measures directly conflicts with that

of defensive medicine. Defensive medicine is an effort to protect against

the accusation of malpractice by using every indicated procedure to

diagnose and treat illness. '^^ This practice is fundamentally opposed to

the concept of minimizing service costs. In the world of reducing costs

for services, defensive medical procedures may be the first to fall.'^*^
This change is already occurring in some public hospitals.'^'

The recent emphasis on cost-cutting in medical care may also affect
the tort principle of standard of care. In Indiana, the standard of care

is determined by a "modified locality rule."^^^ The competence of medical

care is evaluated in the context of the medical care rendered by physicians

in the same or a similar locality. ^^^ The standard therefore is self-

determined by the profession. In conjunction with advances in medical

technology, heightened patient expectations, and the spread of defensive

medicine, the standard of care has become increasingly higher. '^^ This

higher standard of care compounds the problem of increased costs.

Physicians perform more tests to ward off malpractice suits, which, in

'"42 U.S.C. § 1320(c) (1982).

'^"Gosfield, supra note 152, at 6-7.

'"5ee Kapp, Legal and Ethical Implications of Health Care Reimbursement by Di-

agnosis Related Groups, 1984 Law, Med. and Health Care 245, 245.
'^^42 U.S.C. § 1320(c)-6(c) (1982).

'"Gosfield, supra note 152, at 8.

'^*See Kapp, supra note 155, at 245.

'^Troject, The Medical Malpractice Threat: A Study of Defensive Medicine, 1971
Duke L.J. 939, 942-943.

'^See Rosenblatt, Rationing "Normal" Health Care: The Hidden Legal Issues, 59

Texas L. Rev. 1401 (1981).

'^'M at 1402.

'"Kranda v. Houser-Norborg Medical Corp., 419 N.E.2d 1024, 1040 (Ind. Ct. App.

1981).

'"Joy V. Chau, 177 Ind. App. 29, 36, 377 N.E.2d 670, 675 (1978).

'"See Note, supra note 151, at 1009.



1148 INDIANA LAW REVIEW [Vol. 19:1129

turn, increase the standard of care. This, in turn, increases the likeUhood

of allegations of malpractice if tests are not performed, thereby rein-

forcing the need to perform more tests. The new Medicare prospective
reimbursement system breaks this circle. ^^^

Now, the medical profession is confronted with a cost containment
philosophy that has repercussions on the standard of care in the com-

munity. Although the community of doctors may consider tests or
procedures appropriate, the cost-cutting pressures exerted by the federal

government may influence a doctor's decisions regarding treatment. The
federal changes are dictated by economic considerations. These consid-

erations conflict with the historical medical ethic to spare no expense

to treat a patient, which had been reinforced by tort law. While federal

law demands that the benefit of additional tests be weighed against the

costs, the prevaihng attitude in tort cases minimizes this balancing. The

effect of this economic balancing on tort law standards has yet to be

determined. ^^^

The conflicting philosophies of cost-containment and tort law arise
from different perspectives. Cost-containment looks at the medical care

system as a whole and institutes changes on a system-wide basis. '^^ The

decision-making process in a tort suit looks at a specific case and addresses

problems on an individual basis. '^^ As one commentator noted:

[I]t is generally difficult to distinguish between medically indicated

costcutting undertaken without regard for medical efficacy. The

distinction becomes even more elusive when the criteria used to
make it depend on whether one views the problem from the
perspective of a legislature seeking to cut costs in general or

that of a jury deciding whether malpractice was committed in

a specific case.*^^

The conflict inherent in these different viewpoints will lead to conflicts

in the responses generated by both the medical profession and the judicial

system. ^^°

Hospitals will become more susceptible to malpractice claims as cost-

cutting measures influence care given to patients. ^"^^ Where federal cost-
cutting pressures are exerted on physicians, the hospital may be more
likely to be allocated part of the liability. Of particular concern to society

^^^See supra notes 147-158 and accompanying text.

'^See Note, supra note 151, at 1009.

^^''See Rosenblatt, supra note 160, at 1422.

'''Id.

^'^See Note, supra note 151, at 1013 (citations omitted).

'™For discussion as to resolution of this conflict, see id. at 1017-19.

'''For a good discussion of the impact of cost cutting measures on those eligible for

Medicare and Medicaid, see Rosenblatt, supra note 160, at 1401.



1986] MEDICAL MALPRACTICE ACT 1149

will be the federal government's pressure on hospitals to monitor phy-

sicians and control decision-making regarding treatment. Whether this

will subject hospitals to broader liability for patient care is yet to be

determined.

It is also possible that patients who believe they have been harmed
as a result of cost-cutting measures such as prospective payment will

include insurers as defendants in malpractice suits. In a recent California

case involving a prospective payment mechanism, a patient who was
discharged from a hospital sooner than her physician initially recom-

mended and who suffered a leg amputation due to complications that
would have been detected had she stayed in the hospital named the
third-party payer as a defendant in a negligence suit.'^^ Although the

appellate court found the insurer not liable in this case,'^^ the holding

does not preclude insurer liabiHty in other circumstances.

VII. Conclusion

The Indiana legislature's reaction in 1975 to the rise in medical

malpractice insurance costs resulted in a trade-off of time and amounts

recovered for preserving the protection of insurance.'^"* Although the Act

contemplates a relatively short period for review of malpractice claims,

implementation of the Act has caused significant delays. ^^^ However,

neither the procedural roadblock the Act creates for plaintiffs nor the

reality of delays has been sufficient to support a constitutional challenge

to the Act.'^^ Further, much of the delay can be controlled by assertion
of the statutory provisions. However, the statutory solution offers not

only opportunities to prepare for litigation, but also traps for those who
are not familiar with the intricacies of the Act, including who is covered
by the Act, what kind of actions are considered malpractice, and how
the statute of limitations applies.

Although Indiana's legislative solution to the medical malpractice

problem represents a change in attitudes about victim recoveries, it does

not affect the deterrent goal of tort law. The deterrent goal is, however,

affected by changes in federal law.'^^ The federal government's en-

couragement of cost-containment in health care discourages practices

that shield doctors and hospitals from accusations of medical mal-

practice. ^^^ Viewed in the context of the federal changes, Indiana mal-

"^Wickline v. State, 183 Cal. App. 3d 1175, 228 Cal. Rptr. 661 (1986).

"*See supra notes 4-14 and accompanying text.

'^^See supra notes 34-54 and 136-142 and accompanying text.

"^See supra notes 136-142 and accompanying text.

^^''See supra notes 154-171 and accompanying text.
178 r^



1150 INDIANA LAW REVIEW [Vol. 19:1129

practice reform takes on greater import. Although the Indiana Act's

provisions for panel review and limitation of damages do not change

the deterrents of negligent behavior, '^^ the federal law does.

Yet, both state and federal law reflect similar changes in attitude,

which taken together have a greater impact than if they stood alone.

The state law represents a choice of affordable insurance and at least

partial compensation for victims as opposed to full compensation re-

coverable from only a few deep pockets. The federal law represents a
choice of economy at the risk of omissions in health care—care that might
be provided if costs were not a barrier.

Although the parties involved would acknowledge the importance of

providing the best quality health care, or full compensation where care

is not the best, the changes represent an implicit acknowledgment of

certain realities. Both federal and state legislatures have recognized the

impact of the economics of medical care. Ultimately, it is this economic

reality which any future steps toward reform must consider.

"^See supra notes 154-161 and accompanying text.