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Medical Malpractice: An Empirical Examination of the Litigation Process

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  • Henry S. Farber
  • Michelle J. White
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    Abstract

    New data on medical malpractice claims against a single hospital in which a direct measure of the quality of medical care is available are used to investigate the roles of the negligence rule and incomplete information in the dispute settlement process in medical malpractice. We find that the quality of medical care (negligence) is an extremely important determinant of defendants' medical malpractice liability. More generally, we find that the data are consistent with a model in which plaintiffs are poorly informed ex ante about whether there has been negligence, file suit to gather information, and either drop the case if they find that negligence was unlikely or settle for a positive payoff if they find that negligence was likely. We also find that the cases are resolved earlier in the litigation process when the parties are more certain, one way or the other, about the likelihood of negligence.

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    Bibliographic Info

    Article provided by The RAND Corporation in its journal RAND Journal of Economics.

    Volume (Year): 22 (1991)
    Issue (Month): 2 (Summer)
    Pages: 199-217

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    Handle: RePEc:rje:randje:v:22:y:1991:i:summer:p:199-217

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    Cited by:
    1. Henri Fraisse, 2010. "Labour Disputes and the Game of Legal Representation," CESifo Working Paper Series 3084, CESifo Group Munich.
    2. Hughes, James W. & Savoca, Elizabeth, 1997. "Measuring the effect of legal reforms on the longevity of medical malpractice claims," International Review of Law and Economics, Elsevier, vol. 17(2), pages 261-273, June.
    3. Dari-Mattiacci, Giuseppe & Deffains, Bruno & Lovat, Bruno, 2011. "The dynamics of the legal system," Journal of Economic Behavior & Organization, Elsevier, vol. 79(1), pages 95-107.
    4. Theodore Eisenberg & Henry S. Farber, 1996. "The Litigious Plaintiff Hypothesis: Case Selection and Resolution," NBER Working Papers 5649, National Bureau of Economic Research, Inc.
    5. James Hughes & Elizabeth Savoca, 1999. "Accounting for censoring in duration data: An application to estimating the effect of legal reforms on the duration of medical malpractice disputes," Journal of Applied Statistics, Taylor & Francis Journals, vol. 26(2), pages 219-228.
    6. Jonathan Yoder, 2008. "Liability, Regulation, and Endogenous Risk: The Incidence and Severity of Escaped Prescribed Fires in the United States," Journal of Law and Economics, University of Chicago Press, vol. 51(2), pages 297-325, 05.
    7. Yasutora Watanabe, 2005. "Learning and Bargaining in Dispute Resolution: Theory and Evidence from Medical Malpractice Litigation," 2005 Meeting Papers 440, Society for Economic Dynamics.
    8. Jensen, Gail A. & Spurr, Stephen J. & Weycker, Derek A. & Bulycheva, Maria, 1999. "Physicians and the risk of medical malpractice: The role of prior litigation in predicting the future," The Quarterly Review of Economics and Finance, Elsevier, vol. 39(2), pages 267-289.
    9. repec:fth:prinin:364 is not listed on IDEAS
    10. Olbrich, Anja, 2008. "Heterogeneous physicians, lawsuit costs, and the negligence rule," International Review of Law and Economics, Elsevier, vol. 28(1), pages 78-88, March.
    11. Spurr, Stephen J., 2000. "The role of nonbinding alternative dispute resolution in litigation," Journal of Economic Behavior & Organization, Elsevier, vol. 42(1), pages 75-96, May.
    12. Kessler, Daniel P. & McClellan, Mark B., 2002. "How liability law affects medical productivity," Journal of Health Economics, Elsevier, vol. 21(6), pages 931-955, November.
    13. Daniel P. Kessler & Mark B. McClellan, 2000. "How Liability Law Affects Medical Productivity," NBER Working Papers 7533, National Bureau of Economic Research, Inc.
    14. Jack Hirshleifer & Evan Osborne, 1999. "Truth and the Legal Battle," UCLA Economics Working Papers 790, UCLA Department of Economics.
    15. Babcock, Linda & Landeo, Claudia M., 2004. "Settlement escrows: an experimental study of a bilateral bargaining game," Journal of Economic Behavior & Organization, Elsevier, vol. 53(3), pages 401-417, March.
    16. Daniel P. Kessler, 2011. "Evaluating the Medical Malpractice System and Options for Reform," Journal of Economic Perspectives, American Economic Association, vol. 25(2), pages 93-110, Spring.

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