1 Typical of the news media’s response to the problem was the front cover of “Newsweek” on June 9, 1975 which read “Malpractice: Doctors in Revolt”. The following summary of its article is quoted from p. 3 of that issue:— “U.S. doctors are in revolt against skyrocketing malpractice-insurance-premiums, and in a number of States they are either out on strike or threatening to go out. The situation could reach crisis proportions if the dilemma is not resolved. Already, some physicians have chosen early retirement rather than pay the new malpractice premiums. The huge increase in malpractice premiums stems from a welter of causes, and there are bitter recriminations on all sides.” See also articles in “The Reader’s Digest,” April, 1975 entitled “Malpractice—The Mess That Must Be Ended” and May, 1975 entitled “We Can End The Malpractice Mess Now.”

2 In New York medical malpractice insurance had been offered by the Argonaut Insurance Company. In 1974, it increased its rate by 93.5 per cent, and in 1975 it sought a further increase of 196.8 per cent. Apparently the overwhelming protests received caused it to abandon the raise in premium and instead it ceased writing medical malpractice insurance upon the expiration date of its policies, which occurred in New York on July 1, 1975.

3 The “New York Times” in a special release reported (July 6, 1975, p. 31, col. 1): “Doctors and insurance companies are contending that high awards are causing malpractice insurance costs to skyrocket. But lawyers for injured persons are contending that verdicts are statistically increasing at a rate much lower than that of insurance costs, and that losses in the stock market rather than high verdicts are prompting the increase in insurance premiums.” This is supported by the statement of Mr. Stephen H. Mackauf included in the Report of the Committee of Medicine and Law of the Association of the Bar of the City of New York, dated Apr. 8, 1975 which found that “the number of malpractice suits is low and has remained relatively stable,” and that recoveries “are not unjustifiably high;” Argonaut’s financial reversals are attributed to management and investment decisions, including a loss of $18,000,000 for the sale of part of its stock portfolio. The vacuum of other companies willing to write malpractice insurance is also attributed to the downturn of stock portfolios making it preferable to underwrite in lines more predictable than malpractice, such as fire and life insurance. See p. 368, Footnote 4 of “The Record,” Vol. 30, No. 5/6 May/June, 1975 published by the Association of the Bar of the City of New York.

4 The report of the Committee of Medicine and Law of the Association of the Bar of the City of New York, dated Apr. 8, 1975 (cited at Footnote 3 sup.) apparently contrary to the statement of Mr. Mackauf, found:— “The available data is persuasive that the number of claims has increased substantially in recent years.” “The Record,” p. 337.

5 The report of the Committee of Medicine and Law of the Association of the Bar of the City of New York (cited at Footnote 3 sup.) apparently contrary to the statement of Mr. Mackauf, found: “The average payment on a medical malpractice claim has also increased substantially in recent years.” See “The Record,” p. 338.

6 Since the question is a complex one, areas of disagreement remain, including:—(A) “Ceilings on Awards.” The State of Indiana has passed legislation limiting recovery in a medical malpractice case to $500,000, (s. 2 (a) of Chapter 2, Public Law 146, Laws of Indiana, Apr. 17, 1975); while the State of Idaho has limited recovery to $150,000 (s. 3 of Chapter 162, Laws of Idaho, Mar. 27, 1975). The ceiling of $100,000 for pain and suffering in medical malpractice cases to avoid large verdicts in New York and thereby better enable insurers to calculate costs was not approved by the Committee of Medicine and Law of the Association of the Bar of the City of New York (cited at Footnote 3 sup.); nor was the ceiling of $50,000 which was proposed by the New York Senate (s. 6435). The committee’s report pointed out that “malpractice litigants should not be treated differently from others.” “The Record” p. 355; (B) “No Fault.” This would allow recoveries of fixed compensation for injury or death contributed to by the doctor regardless of his malpractice. The committee’s report stated it was convinced it offered no immediate solution (because many more people would be compensated and the cost of insurance would be greater), but it recommended that the subject be further investigated. “The Record,” p. 343; (C) “Compensation Based on Fault But Limited to a Fixed Schedule,” depending on the nature of the injury. The committee rejected this as a solution to the problem because, among other things, the total cost may equal and soon exceed the premium costs. “The Record,” p. 346; (D) “Compulsory Arbitration” was rejected by the committee, stating it “would raise several constitutional issues, including unlawful delegation of jurisdiction, denial of due process, denial of equal protection of the laws, and denial of the right to a jury trial.” The committee, however, endorsed the existing voluntary programme of arbitration, namely obtaining a written consent agreeing to submit malpractice claims to arbitration signed by the patient before obtaining treatment and providing it may be revoked by the patient 30 days after his discharge. “The Record,” p. 344.