A Short and Plain Solution to the Medical Malpractice Crisis: Why Charles E. Clark Remains Prophetically Correct about Special Pleading and the Big Case Academic Article uri icon


  • Antitrust. Patent infringement. Civil rights. Employment discrimination. And now, medical malpractice. The common thread among each of these categories of cases is that judges and advocates have, at one time or another, sought to elevate the pleading requirements in federal court for these so-called "big cases." To date, every such effort has failed.6 But none of the previous attempts have garnered the wide range of support now coming from such influential sources as the majority of physicians, Congress, and the President of the United States.Our country is in the middle of a similar predicament-a medical malpractice crisis that is influencing, and attempting to alter, the rules of pleading in federal court. Essentially, doctors and their advocates assert that without stiff and immediate limitations on medical malpractice litigation, doctors will be unable to afford the escalating costs of medical malpractice insurance coverage and will eventually be "run out of town" or at least out of business, leaving many of us without the aid of a physician when we need medical care. Although many reforms have already been enacted, those challenging the reforms assert that medical malpractice continues to occur and that victims continue to need access to a forum for judicial relief.' Without seeking to embrace or advance the merits of either camp's arguments, this Article will instead seek to respond to the residual quandary posed by the current national crisis-how pleading requirements in medical malpractice cases are infringing upon the Federal Rules in diversity actions.Because there are very few instances where medical malpractice issues arise under federal statute, invariably, the majority of medical malpractice cases filed in federal court will enter via diversity jurisdiction. Thus, while doctors and plaintiffs lawyers debate the finer points of the medical malpractice crisis, this Article focuses on resolving the impending Erie question regarding heightened pleading in federally filed medical malpractice actions. Part II of this Article provides a brief overview of the medical malpractice crisis and its impact on litigation. Part III evaluates the proffered solution-heightened pleading-and assesses the various approaches taken by federal courts in resolving the Erie issue presented by heightened pleading. Part IV critiques the proffered solution from the perspective of history, the Federal Rules, and precedent. In doing so, Part IV will trace the evolution of notice pleading and underscore the lasting and unchanging nature of Rule 8 from Dioguardi to Conley to Leatherman to Swierkiewicz. Finally, Part V offers an improved solution to the medical malpractice crisis that more fully addresses the concerns of overburdened physicians while more closely meeting the equally important needs of injured patients and keeping intact the important procedural design of the Federal Rules. For now, it appears the "big case" is once again upon us.

published proceedings

  • Georgia Law Review

author list (cited authors)

  • Penrose, M. M., & Caldwell, D. A

complete list of authors

  • Penrose, Mary Margaret||Caldwell, Dace A

publication date

  • March 2005