No-Fault Compensation for Medical Injury: A Case Study

Prologue: As many states have, Florida found itself facing a crisis in medical malpractice liability in the 1970s and 1980s. Between 1970 and 1975 more than twenty medical malpractice insurers canceled their coverage of Florida physicians, and by the mid-1980s the state's largest malpractice insurer ceased doing business there altogether. The reasons? Malpractice claims were increasing, particularly for obstetrics; and severity of claims (that is, the amount paid out) also was increasing, again particularly for obstetrical cases. Clearly, a legislative response to the perceived crisis was called for. In 1988 Florida passed a bill transferring liability cases for newborn infants' neurological injuries from the tort system to a no-fault system. Unlike the tort system, no-fault liability compensates patients who suffer any treatment-induced injury, not just those that can be traced to medical malpractice or negligence. Legislators focused on neonatal neurological injuries for several logical reasons: Neurological injuries accounted for more than 30 percent—the largest single percentage—of all obstetrical claims, and the injuries tended to be severe. In this paper Jill Horwitz and Troyen Brennan use Florida's program as a case study, to examine the pros and cons of abandoning tort liability in favor of no-fault injury compensation. The results, five years into the program, are mixed. Horwitz is a candidate for the juris doctor degree at Harvard Law School. She holds a master of public policy degree from the Kennedy School of Government at Harvard. Brennan is a professor of law and public health and director of the Program in Law and Public Health at the Harvard School of Public Health. He also is a professor of medicine at Harvard Medical School and is a physician at the Brigham and Women's Hospital in Boston. He holds medical, public health, and law degrees from Yale University. Abstract: Changes in malpractice law remain an important goal of health care reform. Many state and federal legislators continue to call for measures that would limit the ability of injured patients to sue. There is also growing interest in alternatives to fault-based litigation. As legislators consider no-fault proposals, they can look to Florida's experience with the Neurological Injury Compensation Association (NICA), which for the past four years has been providing no-fault compensation for injured newborns. NICA provides some insights into the ways in which claims are generated, the nature of risk spreading, and the financial viability of a no-fault model.