Reviewing the law reviews.

• Author: Youngdale, Elizabeth M.

This is a selective bibliography of current law review literature of interest to defense counsel. Main articles are identified by naming the author or authors. The designations "Note," "Comment," etc. are as listed in the publication, with the authorship, if given, shown in parentheses. Symposiums are generally shown by title.

CAPS AND CRISIS

One hot-button item in today's news is the rising cost of medical malpractice liability insurance and the effect of skyrocketing premiums on the practice of medicine in the United States. Several recent law review articles investigate the probable causes of the crisis, discuss possible solutions, and suggest new avenues to consider to alleviate the pressure on the U.S. health care system.

In an effort to deal with physicians' escalating malpractice insurance premiums, the U.S. Congress is considering imposing a federal cap on malpractice liability actions as a way to lower damage awards that many people believe have been a primary cause for insurance companies to increase premiums. Adam D. Glassman of the Zicklin School of Business looks at this proposed legislation and the malpractice insurance crisis that led up to it in "The Imposition of Federal Caps in Medical Malpractice Liability Actions: Will They Cure the Current Crisis in Health Care?" in 37 Akron Law Review 417 (2004).

Glassman discusses H.R. 5 in the current Congress, which, after passing the House, was placed on the Senate's calendar. The bill proposes limits to damages, limitations of actions and limitations on attorneys' fees. Other bills, originating in the Senate, are similar, with some exceptions. Following his discussion of the solutions proposed on the federal level, Glassman analyzes the approaches taken by various states, outlining the very different ways states have tried to alleviate the malpractice insurance situation locally. Finally, the article deals with California's attempt to cap damages, which it labels a "failure."

A national cap on damage awards will have effects on more than just healthcare professionals. Kevin J. Gfell, a student at Indiana University School of Law, looks at some of the ramification of a cap in "The Constitutional and Economic Implications of a National Cap on Non-Economic Damages in Medical Malpractice Actions" in 37 Indiana Law Review 773 (2004). He first takes a historical perspective, discussing the background of the current crises and the theoretical arguments both for and against a national cap. He then looks at the case law on the constitutionality of a cap, taking into account the right to a jury trial, separation of powers issues, and due process and equal protection guarantees. He analyzes state case law on these issues in states where caps already have been enacted and have been challenged on constitutional grounds. After the constitutional discussion, Gfell turns to the economic effects of a national cap and considers whether a cap would bring about the results intended by Congress, especially in light of the goals of the tort law system.

He concludes by pointing out some alternative solutions to the medical malpractice insurance crisis that might curb the rising cost, while still providing protection and care for those most severely injured by medical malpractice.

Christina O. Jackiw, a law student at Loyola University of Chicago School of Law, provides a summary of the Third Annual Health Law Colloquium, The Medical Malpractice Crisis: Federal Efforts, States' Roles and Private Responses in her introduction to the colloquium, "The Current Medical Liability Insurance Crisis: An Overview of the Problem Its Catalysts and Solutions" in 13 Annals of Health Law 505 (2004).

Jackiw looks at the catalysts for the malpractice insurance crisis and some of the proposed solutions. The catalysts, she says, have to do with a combination of issues--medical errors, the insurance industry cycle and the inflation of health care costs. For solutions, she posits that there should be "more than just tort reform." While many states are considering tort reform measures, and even Congress has taken up the issue, she suggests that other avenues, such as methods of stabilizing the insurance market and measures aimed at improving patient safety, might, in combination with tort reform, offer the best solution.

U.S. and International

Damages

Elizabeth Adjin-Tettey, Replicating and Perpetuating Inequalities in Personal Injury Claims Through Female-Specific Contingencies, 49 McGill Law Journal 309 (2004).

William S. Bailey, Flawed Justice: Limitation of Parental Remedies for the Loss of Consortium of Adult Children, 27 Seattle University Law Review 941 (2004).

Jean M. Boylan, The Total Cost Method: A Creative Approach to Calculating Damages in Complex Construction Cases, 25 Whittier Law Review 769 (2004).

Michael L. Brookshire, To Deter, Punish, But Not Destroy: Forensic Economic Analysis of Jury Factors for Punitive Damages, 12 Journal of Legal Economics 1 (2002).

Jon W. Burr, Where the Rabbit Hole Ends: A Working Model for Measuring Winstar-Type Damages in the Federal Circuit, 13 Federal Circuit Bar Journal 657 (2004).

Janeen M Carruthers, Substance and Procedure in the Conflict of Laws: A Continuing Debate in Relation to Damages, 53 International & Comparative Law Quarterly 691 (2004).

Paula Case, Secondary Iatrogenic Harm: Claims for Psychiatric Damage Following a Death Caused by Medical Error, 67 Modern Law Review 561 (2004).

David Cheifetz, Allocating Financial Responsibility among Solvent Concurrent Wrongdoers: Problems in Apportionment of Fault in Contribution and Contributory Fault Cases Resulting from Martin v. Listowel Memorial...