Settlement Has Many Faces: Physicians, Attorneys and Medical Malpractice

Abstract

We conduct an analysis of the jurisdictional dispute over the management of medical malpractice lawsuits, focusing on the process through which liability is defined. We utilize a North Carolina sample of physicians who have been sued, their defense counsel, and counsel for the plaintiff in the case. A comparison of the perspectives of these three parties reveals that over half of the physicians who settle perceive themselves as not liable. Defense counsel are more adept at predicting both negotiated resolutions and whether or not money will be paid than either plaintiffs' counsel or physicians. Almost two-thirds of physicians who thought they were not liable expressed a desire for vindication. Almost half the time when the physicians denied liability money was nonetheless paid to resolve the claim. Physician responses to the outcome of their cases focus on the need for reform, especially in terms of a call for peer or expert review. We identify and discuss culture conflict between law and medicine. For lawyers "settlement" is not a negative thing, but for physicians it implies fault. We challenge existing literature which analyzes the settlement of medical malpractice claims solely in terms of rational economic models, and we argue that social psychological variables are equally important.