As other contributions to this volume demonstrate, some approaches to the malpractice crisis would remove medical liability claims from the civil justice system – for instance, by employing alternative dispute resolution or by instituting an administrative claims system. When considering such measures, it is important to assess whether the present litigation system could be improved. Arguably, if enhancements are feasible, then it is the enhanced system against which alternative possibilities should be measured.

Each stage of litigation provides opportunities for reform. Certificate-of-merit requirements could alter the choices made by some plaintiffs' lawyers when deciding whether to assert a claim. Judicial training could improve judges' supervision of the pretrial process and their resolution of cases prior to trial on motions for summary judgment. Jury reforms could refine the jury's ability to assess liability and determine damages. And a heightened remittitur standard could empower judges to decrease the variability of jury awards, particularly in the area of noneconomic damages.

PLAINTIFFS' LAWYERS AND THE DECISION TO SUE

Though many valid medical liability claims are never brought, some claims that are asserted turn out to be weak. Specialist medical malpractice attorneys are relatively unlikely to bring weak suits, but nonspecialist plaintiffs' lawyers may sometimes do so. Certificate-of-merit requirements, which require the plaintiff's lawyer to consult a medical expert at the outset, may help filter out insubstantial claims.

To bring a claim, the plaintiff must obtain representation.