Choice-of-Law Problems in Medical Malpractice Actions: Legislative Prescriptions and Judicial Side Effects

In the middle and late 1970\u27s, a number of state legislatures, reacting to what they perceived to be a medical malpractice crisis, enacted statutes intended to assure the continuity of affordable medical care. Some of the statutes imposed a ceiling on the damages recoverable in medical malpractice actions. Some created arbitration panels for such actions. Some abrogated the collateral source rule in such actions, and some required plaintiff\u27s counsel to file an affidavit asserting that a qualified expert had reviewed the case and concluded that there had been a deviation from the appropriate standard of care. Some state legislatures apparently taking a more benign view of the alleged crisis, enacted no such statutes. When a plaintiff domiciled in a state having no such statute brings a medical malpractice action against a defendant who practices in a state having such a statute, the court is likely to confront a choice-of-law problem. This article examines the manner in which courts have been resolving such problems, and suggests an appropriate methodology for their resolution