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Variability in Medical Malpractice Payments: Is the Compensation Fair?

Published online by Cambridge University Press:  01 July 2024

Frank A. Sloan  and
Chee Ruey Hsieh
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Abstract

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This study uses a framework in which disputants' litigation decisions are based on optimizing expected returns and minimizing losses to analyze outcomes of medical malpractice disputes—the probability of payment, stage of resolution, and amounts paid, based on closed medical malpractice claims from Florida and jury verdict reporter abstracts from five jurisdictions. Using judgments of an expert panel and other indicators, the analysis reveals that cases are more likely to result in paid claims when the defendant appears to be liable. By contrast, cases brought to satisfy a claimant motive of vindication are less likely to result in payment; such cases have a higher probability of being tried. Claimants with more serious injuries tend to receive higher payments. Payment appears equitable vertically, but there is appreciable variability in payment for similar injuries which may reflect horizontal inequities.

Type
Research Article
Information
Law & Society Review , Volume 24 , Issue 4 , 1990 , pp. 997 - 1039
Copyright
Copyright © 1990 The Law and Society Association.

Footnotes

This research was supported in part by Grant No. 12412 from The Robert Wood Johnson Foundation. Support for assembling the data was provided by Grant No. HSS 1 R01 HS05693 from the National Center for Health Services Research, U.S. Department of Health and Human Services (now the Agency for Health Care Policy and Research). We wish to thank Dr. Laurence Tancredi, Health Science Center at Houston, University of Texas, and his colleagues for providing assessments of injury avoidability on a subsample of cases. We are thankful to Randall Bovbjerg, the Urban Institute, and Penny Githens and David Partlett, Vanderbilt University, for their advice.

References

References

AMERICAN MEDICAL ASSOCIATION SPECIAL TASK FORCE ON PROFESSIONAL LIABILITY AND INSURANCE (1984) Professional Liability in the '80s. Chicago: American Medical Association.Google Scholar
BEBCHUK, Lucien A. (1988) “Suing Solely to Extract a Settlement Offer,” 17 Journal of Legal Studies 437.Google Scholar
BEBCHUK, Lucien A. (1984) “Litigation and Settlement Under Imperfect Information,” 15 RAND Journal of Economics 404.Google Scholar
BRODER, Ivy E. (1986) “Characteristics of Million Dollar Awards: Jury Verdicts and Final Disbursements,” 11 Justice System Journal 349.Google Scholar
BOVBJERG, Randall R., SLOAN, Frank A., and James F., BLUMSTEIN (1989) “Valuing Life and Limb in Tort: Scheduling ‘Pain and Suffering’,” 83 Northwestern University Law Review 908.Google Scholar
CALFEE, John E., and Clifford, WINSTON (1988) “Economic Aspects of Liability Rules and Liability Insurance,” in Litan, R. E. and Winston, C. (eds.), Liability: Perspectives and Policy. Washington, DC: Brookings Institution.Google Scholar
CALIFORNIA MEDICAL ASSOCIATION AND CALIFORNIA HOSPITAL ASSOCIATION (1987) Report on the Medical Insurance Feasibility Study. San Francisco, CA: Sutter Publications, Inc.Google Scholar
CHIN, Audrey, and Mark A., PETERSON (1985) Deep Pockets, Empty Pockets: Who Wins in Cook County Jury Trials. Santa Monica, CA: RAND Corporation.Google Scholar
COLEMAN, Jules (1989) “Justice and Personal Injury,” in The World and I: A Chronical of Our Changing Era. Washington, DC: Washington Times Corporation.Google Scholar
COOTER, Robert D., and Daniel L., RUBENFIELD (1989) “Economic Analysis of Legal Disputes and Their Resolution,” 27 Journal of Economic Literature 1067.Google Scholar
DANZON, Patricia M. (1988) “Medical Malpractice Liability,” in Litan, R. E. and Winston, C. (eds.), Liability: Perspectives and Policy. Washington, DC: Brookings Institution.Google Scholar
DANZON, Patricia M. (1985a) Medical Malpractice: Theory, Evidence, and Public Policy. Cambridge, MA: Harvard University Press.CrossRefGoogle Scholar
DANZON, Patricia M. (1985b) “Liability and Liability Insurance for Medical Malpractice,” 4 Journal of Health Economics 309.Google Scholar
DANZON, Patricia M., and Lee A., LILLARD (1983) “Settlement out of Court: The Disposition of Medical Malpractice Claims,” 12 Journal of Legal Studies 345.Google Scholar
DUNGWORTH, Terence (1988) Product Liability and the Business Sector: Litigation Trends in Federal Courts. Santa Monica, CA: RAND Corporation.Google Scholar
FELSTINER, William L. F., ABEL, Richard L., and Austin, SARAT (1980–81) “The Emergence and Transformation of Disputes: Naming, Blaming, Claiming,” 15 Law & Society Review 631.Google Scholar
GALANTER, Marc (1974) “Why the ‘Haves’ Come Out Ahead: Speculations on the Limits of Legal Change,” 9 Law & Society Review 95.Google Scholar
GENN, Hazel (1987) Hard Bargaining: Out of Court Settlement in Personal Injury Actions. Oxford: Clarendon Press.Google Scholar
HARVARD MEDICAL MALPRACTICE STUDY (1990) Patient, Doctors, and Lawyers: Medical Injury Malpractice Litigation, and Patient Compensation in New York. Boston: Harvard Medical Malpractice Study.Google Scholar
HAVIGHURST, Clark C. (1975) “Medical Adversity Insurance: Has Its Time Come?” in Duke Law Journal, Medical Malpractice: The Duke Law Journal Symposium. Cambridge, MA: Ballinger Publishing Co.Google Scholar
HAVIGHURST, Clark C., and Laurence R., TANCREDI (1973) “Medical Adversity Insurance: A No-Fault Approach to Medical Malpractice and Quality Assurance,” 51 Milbank Memorial Fund Quarterly 125.Google Scholar
HECKMAN, James (1979) “Sample Selection Bias as a Specification Error,” 47 Econometrica 153.Google Scholar
HOBBS, Nicholas, and James M., PERRIN (1985) Issues in the Care of Children with Chronic Illness. San Francisco: Jossey-Bass.Google Scholar
HUBER, Peter W. (1988) Liability: The Legal Revolution and Its Consequences. New York: Basic Books.Google Scholar
LITAN, Robert E., Peter, SWIRE, and Clifford, WINSTON (1988) “The U.S. Liability System: Background and Trends,” in Litan, R. E. and Winston, C. (eds.), Liability: Perspectives and Policy. Washington, DC: Brookings Institution.Google Scholar
MANNE, Henry (1985) Medical Malpractice Policy Guidebook. Tallahassee: Florida Medical Association.Google Scholar
MAY, Marlynn L., and Daniel B., STENGEL (1990) “Who Sues Their Doctors? How Patients Handle Medical Grievances,” 24 Law & Society Review 802.Google Scholar
MERRY Sally, E., and Susan S., SILBEY (1984) “What Do Plaintiffs Want? Reexamining the Concept of Dispute,” 9 Law & Society Review 151.Google Scholar
MILLER, Richard E., and Austin, SARAT (1980–81) “Grievances, Claims, and Disputes: Assessing the Adversary Culture,” 15 Law & Society Review 525.Google Scholar
NALEBUFF, Barry (1987) “Credible Pretrial Negotiation,” 18 RAND Journal of Economics 198.Google Scholar
NATIONAL ASSOCIATION OF INSURANCE COMMISSIONERS (1980) NAIC Malpractice Claims: 1975–1978. Brookfield, WI: NAIC Support & Services Office.Google Scholar
NYE, David J., GIFFORD, Donald G., WEBB, Bernard L., and Marvin A., DEWAR (1988) “The Causes of the Medical Malpractice Crisis: An Analysis of Claims Data and Insurance Company Finances,” 76 Georgetown Law Journal 1495.Google Scholar
PETERSON, Mark A. (1987) Civil Juries in the 1980s: Trends in Jury Trials and Verdicts in California and Cook County, Illinois. Santa Monica, CA: RAND Corporation.Google Scholar
PETERSON, Mark A. (1984) Compensation of Injuries: Civil Jury Verdicts in Cook County. Santa Monica, CA: RAND Corporation.Google Scholar
P'NG, Ivan P. L. (1987) “Litigation, Liability, and Incentives for Care,” 34 Journal of Public Economics 61.Google Scholar
P'NG, Ivan P. L. (1983) “Strategic Behavior in Suit, Settlement, and Trial,” 14 Bell Journal of Economics 539.Google Scholar
POSNER, Richard A. (1986) Economics Analysis of Law. 3d ed. Boston: Little Brown.Google Scholar
PRIEST, George L. (1987) “The Current Insurance Crisis and Modern Tort Law,” 96 Yale Law Journal 1521.Google Scholar
PRIEST, George L. (1985) “Reexamining the Selection Hypothesis: Learning from Wittman's Mistakes,” 14 Journal of Legal Studies 215.Google Scholar
PRIEST, George L., and Benjamin, KLEIN (1984) “The Selection of Disputes for Litigation,” 13 Journal of Legal Studies 1.Google Scholar
REA, Samuel Jr. (1982) “Nonpecuniary Loss and Breach of Contract,” 11 Journal of Legal Studies 35.Google Scholar
REINGANUM, Jennifer F., and Louis L., WILDE (1986) “Settlement, Litigation and the Allocation of Litigation Costs,” 17 RAND Journal of Economics 557.Google Scholar
ROSENTHAL, Douglas E. (1974) Lawyer and Client: Who's in Charge. New York: Russell Sage Foundation.Google Scholar
ROSS, H. Laurence (1980) Settled Out of Court: The Social Process of Insurance Claims Adjustments. 2d ed. Chicago: Aldine Publishing Co.Google Scholar
RUSNAK, Robert A., STAIR, Thomas O., HANSEN, Karen, and Joseph, FASTOW (1989) “Litigation Against the Emergency Physician: Common Features in Case of Missed Myocardial Infarction,” 18 Annals of Emergency Medicine 1029.Google Scholar
SHANLEY Michael, G. and Mark A., PETERSON (1987) Posttrial Adjustments to Jury Awards. Santa Monica, CA: RAND Corporation.Google Scholar
SHAVELL, Steven (1987) Economic Analysis of Accident Law. Cambridge, MA: Harvard University Press.CrossRefGoogle Scholar
SLOAN, Frank A., and Randall R., BOVBJERG (1989) Medical Malpractice: Crises, Response, and Effects. Washington, DC: Health Insurance Association of America.Google Scholar
SLOAN, Frank A., BOVBJERG, Randall R., and Penny B., GITHENS (1991) Insuring Medical Malpractice. New York: Oxford University Press.CrossRefGoogle ScholarPubMed
SLOAN, Frank A., MERGENHAGEN, Paula M., and Randall R., BOVBJERG (1989) “Effects of Tort Reforms on the Value of Closed Medical Malpractice Claims: A Microanalysis,” 14 Journal of Health Politics, Policy and Law 663.Google Scholar
SOLER, Joseph M., MONTES, Mel F., EGOL, Andrew B., NATEMAN, H. Richard, DONALDSON, Edward A., and Herbert H., GREENE (1985) “The Ten-Year Experience of a Large Urban EMS System,” 14 Annals of Emergency Medicine 982.Google Scholar
TORT POLICY WORKING GROUP (1987) An Update on the Liability Crisis. Washington, DC: Government Printing Office.Google Scholar
TRAUTLEIN, Joseph J., LAMBERT, Robert L., and Jackie, MILS (1984) “Malpractice in the Emegency Department—Review of 200 Cases,” 13 Annal of Emergency Medicine 709.Google Scholar
TREBILCOCK, Michael J. (1989) “The Future of Tort Law,” in The World and I: A Chronical of Our Changing Era. Washington, DC: Washington Times Corporation.Google Scholar
TREBILCOCK, Michael J. (1987) “The Social Insurance-Deterrence Dilemma of Modern North American Tort Law: A Canadian Perspective on the Liability Insurance Crisis,” 24 San Diego Law Review 929.Google Scholar
U.S. GENERAL ACCOUNTING OFFICE (1987) Medical Malpractice: Characteristics of Claims Closed in 1984. Washington, DC: Government Printing Office.Google Scholar
U.S. GENERAL ACCOUNTING OFFICE (1986) Medical Malpractice: No Agreement of the Problems or Solutions. Washington, DC: Government Printing Office.Google Scholar
VISCUSI, W. Kip (1989) “Toward a Diminished Role for Tort Liability: Social Insurance, Government Regulation, and Contemporary Risks to Health and Safety,” 6 Yale Journal on Regulation 65.Google Scholar
VISCUSI, W. Kip (1988) “Product Liability Litigation with Risk Aversion,” 17 Journal of Legal Studies 101.Google Scholar
VISCUSI, W. Kip (1986) “The Determinants of the Disposition of Product Liability Claims and Compensation for Bodily Injury,” 15 Journal of Legal Studies 321.Google Scholar
WITTMAN, Donald (1988) “Dispute Resolution, Bargaining, and the Selection of Cases for Trial: A Study of the Generation of Biased and Unbiased Data,” 17 Journal of Legal Studies 313.Google Scholar
WITTMAN, Donald (1985) “Is the Selection of Cases for Trial Biased?” 14 Journal of Legal Studies 185.Google Scholar

Statute Cited

Florida Stat. Ann. § 627.912 (West 1984).Google Scholar