The myth of the medical malpractice claims crisis

New research published in the latest issue of Journal of Empirical Legal Studies examines Texas medical malpractice claims and finds no tort crisis. Instead, the study’s authors find that, over a 15-year period, the system was largely stable and generated few significant changes in claim frequencies, payments, or jury verdicts. “Average payments on medical malpractice claims rose because small claims were squeezed out of the system over time, not because payments on larger claims increased,” the authors explain.

The authors used a comprehensive database of insured closed claims maintained by the Texas Department of Insurance since 1988. The data presented a picture of stability in most respects and only moderate change in others. Their research also revealed a weak connection between claims-related costs and short-to-medium fluctuations in insurance premiums. “Our hope is that better understanding of the claims process will lead to reforms that address real shortcomings in the malpractice litigation and claims payment systems, rather than respond to anecdotes or the rhetoric of crisis” the authors Bernard Black, Charles Silver, David A. Hyman and William M. Sage conclude.

This study is published in the July issue of Journal of Empirical Legal Studies. MEDIA wishing to receive a PDF of this article please contact [email protected]

The Journal of Empirical Legal Studies (JELS) is a peer-edited, peer-refereed, interdisciplinary journal that publishes high-quality, empirically-oriented articles of interest to scholars in a diverse range of law and law-related fields, including civil justice, corporate law, criminal justice, domestic relations, economics, finance, health care, political science, psychology, public policy, securities regulation, and sociology.

Bernard S. Black practiced corporate and securities law at Skadden, Arps, Slate, Meagher & Flom in New York City, and served as Counsel to Commissioner Joseph Grundfest of the U.S. Securities and Exchange Commission. He has also been Professor of Law at Stanford Law School (1998–2004) and Columbia Law School (1988–1998). Professor Black is available for questions and interviews.

Charles Silver currently serves as Associate Reporter on the American Law Institute’s project on Aggregate Litigation. He has published widely on class actions and complex lawsuits, attorneys’ fees, the professional responsibilities of lawyers, insurance, and health care law and policy. Professor Silver is available for questions and interviews.

David A. Hyman, who received degrees in law and medicine from the University of Chicago, teaches health care regulation, civil procedure, insurance law, law & economics, professional responsibility, and tax policy. He has published articles on a wide variety of issues, but focuses his research on the regulation and financing of health care. Doctor Hyman is available for questions and interviews.

William M. Sage, who earned degrees in both law and medicine at Stanford University, teaches courses in health law, antitrust, regulatory theory, and the professions. He currently serves as principal investigator for the Project on Medical Liability in Pennsylvania, a 3-year program of medical malpractice policy research funded by The Pew Charitable Trusts. Doctor Sage is available for questions and interviews.

From Journal of Empirical Legal Studies

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