Medical Malpractice Tort Reform Research Articles

Policy Analysis of Medical Malpractice Reforms: What Can We Learn From Claims Data?

Selection processes that are inherent in litigation complicate policy-oriented research of medical malpractice tort reforms. In regard to their deterrent impact, the range of potential inferences based on analyses of claim frequency is limited because plaintiffs only file a subset of potential claims. In regard to their impact on litigation costs, researchers often analyze data on claim disposition, but it is difficult to determine whether effects attributed to tort reforms reflect changes in litigant behavior or their influence on the selection of claims. In this article, we evaluate these problems and report results of our study of the effects of medical malpractice reforms on claim disposition.

Product Liability Litigation with Risk Aversion

Previous articleNext article No AccessProduct Liability Litigation with Risk AversionW. Kip ViscusiW. Kip Viscusi Search for more articles by this author PDFPDF PLUS Add to favoritesDownload CitationTrack CitationsPermissionsReprints Share onFacebookTwitterLinkedInRedditEmail SectionsMoreDetailsFiguresReferencesCited by The Journal of Legal Studies Volume 17, Number 1Jan., 1988 Sponsored by The University of Chicago Law School Article DOIhttps://doi.org/10.1086/468123 Views: 9Total views on this site Citations: 31Citations are reported from Crossref Copyright 1988 The University of ChicagoPDF download Crossref reports the following articles citing this article:Barbara Luppi Behavioral Biases and the Law, Review of Law & Economics 17, no.22 (Dec 2021): 453–464.https://doi.org/10.1515/rle-2021-0065J.B. Heaton Risk aversion as risk-neutral pessimism: A simple proof, International Review of Law and Economics 56 (Dec 2018): 70–72.https://doi.org/10.1016/j.irle.2018.07.002J.B. Heaton Risk Neutral Justice, SSRN Electronic Journal (Jan 2018).https://doi.org/10.2139/ssrn.3179835Enrique Guerra-Pujol Litigation as a Dollar Auction, SSRN Electronic Journal (Jan 2016).https://doi.org/10.2139/ssrn.2802290Danial Asmat, Sharon L. Tennyson Tort Liability and Settlement Failure: Evidence on Litigated Auto Insurance Claims, SSRN Electronic Journal (Jan 2016).https://doi.org/10.2139/ssrn.2816697J.J. Prescott, Kathryn E. Spier, and Albert Yoon Trial and Settlement: A Study of High-Low Agreements, The Journal of Law and Economics 57, no.33 (Jun 2015): 699–746.https://doi.org/10.1086/677297P. Fenn, N. Rickman Information and the Disposition of Medical Malpractice Claims: A Competing Risks Analysis, Journal of Law, Economics, and Organization 30, no.22 (May 2013): 244–274.https://doi.org/10.1093/jleo/ewt002Gonzalo Martin Ruiz Understanding the Pro-plaintiff Bias in Consumer Protection Legal Processes, Journal of Consumer Policy 37, no.11 (Feb 2014): 113–141.https://doi.org/10.1007/s10603-014-9253-5Andrew I. Friedson, Thomas J. Kniesner Losers and losers: Some demographics of medical malpractice tort reforms, Journal of Risk and Uncertainty 45, no.22 (Sep 2012): 115–133.https://doi.org/10.1007/s11166-012-9152-6Kuo-Chang Huang, Kong-Pin Chen, Chang-Ching Lin An Empirical Investigation of Settlement and Litigation-The Case of Taiwanese Labor Disputes, Journal of Empirical Legal Studies 7, no.44 (Nov 2010): 786–810.https://doi.org/10.1111/j.1740-1461.2010.01195.xJ.J. Prescott, Kathryn E. Spier, Albert Yoon Trial and Settlement: A Study of High-Low Agreements, SSRN Electronic Journal (Jan 2010).https://doi.org/10.2139/ssrn.1676404Seth A. A. Seabury Case Selection after the Trial: A Study of Post-Trial Settlement and Appeal, SSRN Electronic Journal (Jan 2009).https://doi.org/10.2139/ssrn.1397702Kuo-Chang Huang, Kong-Pin Chen, Chang-Ching Lin An Empirical Investigation of Settlement & Litigation - The Case of Taiwan Labor Disputes, SSRN Electronic Journal (Jan 2009).https://doi.org/10.2139/ssrn.1433683Mark J. Browne, Joan T. Schmit Litigation Patterns in Automobile Bodily Injury Claims 1977–1997: Effects of Time and Tort Reforms, Journal of Risk & Insurance 75, no.11 (Mar 2008): 83–100.https://doi.org/10.1111/j.1539-6975.2007.00249.x Joni Hersch , Jeffrey O’Connell , and W. Kip Viscusi An Empirical Assessment of Early Offer Reform for Medical Malpractice Hersch/O'Connell/Viscusi, The Journal of Legal Studies 36, no.S2S2 (Jul 2015): S231–S259.https://doi.org/10.1086/519464Adam Burgess Mobile Phones and Service Stations: Rumour, Risk and Precaution, Diogenes 54, no.11 (Jul 2016): 125–139.https://doi.org/10.1177/0392192107073435Daniel P. Kessler, Daniel L. Rubinfeld Chapter 5 Empirical Study of the Civil Justice System, (Jan 2007): 343–402.https://doi.org/10.1016/S1574-0730(07)01005-5Adam Burgess Téléphones portables et stations-service, Diogène n° 213, no.11 (Mar 2006): 153–173.https://doi.org/10.3917/dio.213.0153 Joni Hersch Demand for a Jury Trial and the Selection of Cases for Trial Hersch, The Journal of Legal Studies 35, no.11 (Jul 2015): 119–142.https://doi.org/10.1086/498831Joni Hersch Jury Demands and Trials, SSRN Electronic Journal (Jan 2004).https://doi.org/10.2139/ssrn.487781Mark J. Browne, Joan T. Schmit Patterns in Personal Automobile Third-Party Bodily Injury Litigation: 1977 - 1997, SSRN Electronic Journal (Jan 2004).https://doi.org/10.2139/ssrn.588481F. P. Tulder, B. C. J. Velthoven Econom(etr)ics of crime and litigation, Statistica Neerlandica 57, no.33 (Aug 2003): 321–346.https://doi.org/10.1111/1467-9574.00234Louis Kaplow, Steven Shavell Economic Analysis of Law, (Jan 2002): 1661–1784.https://doi.org/10.1016/S1573-4420(02)80029-5 Terry Thomason , and John F. Burton, Jr. Economic Effects of Workers' Compensation in the United States: Private Insurance and the Administration of Compensation Claims, Journal of Labor Economics 11, no.1, Part 21, Part 2 (Oct 2015): S1–S37.https://doi.org/10.1086/298327Frank A. Sloan, Thomas J. Hoerger Uncertainty, information and resolution of medical malpractice disputes, Journal of Risk and Uncertainty 4, no.44 (Dec 1991): 403–423.https://doi.org/10.1007/BF00056164W. Kip Viscusi Product and Occupational Liability, Journal of Economic Perspectives 5, no.33 (Aug 1991): 71–91.https://doi.org/10.1257/jep.5.3.71Peter J. van Koppen Risk taking in civil law negotiations., Law and Human Behavior 14, no.22 (Jan 1990): 151–165.https://doi.org/10.1007/BF01062970James W. Hughes, Edward A. Snyder Policy Analysis of Medical Malpractice Reforms: What Can We Learn From Claims Data?, Journal of Business & Economic Statistics 7, no.44 (Oct 1989): 423–431.https://doi.org/10.1080/07350015.1989.10509754 J. Mark Ramseyer , and Minoru Nakazato The Rational Litigant: Settlement Amounts and Verdict Rates in Japan, The Journal of Legal Studies 18, no.22 (Oct 2015): 263–290.https://doi.org/10.1086/468148W.Kip Viscusi Pain and suffering in product liability cases: Systematic compensation or capricious awards?, International Review of Law and Economics 8, no.22 (Dec 1988): 203–220.https://doi.org/10.1016/0144-8188(88)90006-3J. Keith Murnighan, Alvin E. Roth, Francoise Schoumaker Risk aversion in bargaining: An experimental study, Journal of Risk and Uncertainty 1, no.11 (Mar 1988): 101–124.https://doi.org/10.1007/BF00055566

Beyond Tort Reform

It has been 2 1/2 years since the American Medical Association created national headlines by describing the professional liability situation facing physicians in this country as a crisis. The American Medical Association's assertion touched off a national debate and signaled the beginning of a wave of medical malpractice tort reform efforts that hit Congress and virtually every state legislature. By the end of 1986 over 30 states had passed legislation that, bluntly stated, made it more difficult to sue physicians for large amounts of money. That is a remarkable record considering that, unlike the crisis of a decade ago, insurance has generally remained available at some price for the vast bulk of physicians. But few believe that this second wave of tort reform will permanently contain the problem. Even with the ardent support of nearly every organization in America that produces a product or provides a service—from the Boy Scouts

The frequency and severity of medical malpractice claims.

THE early seventies witnessed a rapid increase in the frequency and severity of medical malpractice claims.' In California, for example, both frequency and severity increased at an average rate of almost 20 percent per annum, cumulating to yield an increase in total claim costs per physician of roughly 40 percent per annum.2 As striking as the growth over time is the variation among states. For example, in 1976 there was an 18-fold range in malpractice claim frequency, per capita or per physician, and a 30-fold range in severity. At the time of the 1975 medical malpractice "crisis," the explosion of claims was attributed to many factors, including growth in the number and complexity of medical treatments; pro-plaintiff trends in common law in general, and in particular the demise of traditional malpractice defenses such as charitable immunity and the locality rule; an increase in the number of lawyers and passage of no-fault automobile legislation in some states; and such intangible factors as the erosion of physician-patient relationships. In response to the crisis, tort "reforms" were enacted in most states during 1975 and 1976. These measures vary in detail from state to state, but their common purpose is to control claim costs by limiting the size of