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When Tort Resolutions Are "Wrong": Predictors of Discordant Outcomes in Medical Malpractice Litigation

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  • David M. Studdert
  • Michelle M. Mello

Abstract

Tort litigation is frequently criticized for producing outcomes that do not match merit. We examined 1,452 closed malpractice claims from five insurers to obtain objective clinical judgments of their underlying merit. We then analyzed predictors of discordant outcomes-payment of apparently nonmeritorious claims and nonpayment of apparently meritorious claims. In multivariate analyses, the odds of both forms of discordant outcome were significantly higher when reviewers judged it a close call as to whether a medical error had occurred. The odds of nonmeritorious claims receiving compensation were significantly higher among cases involving infants and health care facility codefendants and significantly lower when claims were decided by trial verdict. The strongest predictor of rejection of meritorious claims was resolution by trial verdict, which suggests that patients who have been harmed by error fare poorly when their claims are decided by juries. (c) 2007 by The University of Chicago. All rights reserved.

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  • David M. Studdert & Michelle M. Mello, 2007. "When Tort Resolutions Are "Wrong": Predictors of Discordant Outcomes in Medical Malpractice Litigation," The Journal of Legal Studies, University of Chicago Press, vol. 36(S2), pages 47-78, June.
    • Handle: RePEc:ucp:jlstud:v:36:y:2007:i:s2:p:s47-s78
    DOI: 10.1086/519465
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    References listed on IDEAS

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    1. Waldfogel, Joel, 1995. "The Selection Hypothesis and the Relationship between Trial and Plaintiff Victory," Journal of Political Economy, University of Chicago Press, vol. 103(2), pages 229-260, April.
    2. Farber, Henry S & White, Michelle J, 1994. "A Comparison of Formal and Informal Dispute Resolution in Medical Malpractice," The Journal of Legal Studies, University of Chicago Press, vol. 23(2), pages 777-806, June.
    3. George L. Priest & Benjamin Klein, 1984. "The Selection of Disputes for Litigation," The Journal of Legal Studies, University of Chicago Press, vol. 13(1), pages 1-56, January.
    4. Sloan, Frank A. & Githens, Penny B. & Clayton, Ellen Wright & Hickson, Gerald B., 1993. "Suing for Medical Malpractice," University of Chicago Press Economics Books, University of Chicago Press, edition 1, number 9780226762791, September.
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    Cited by:

    1. Michael Heise, 2013. "Empirical Analysis of Civil Litigation: Torts Trials in State Courts," Chapters, in: Jennifer H. Arlen (ed.), Research Handbook on the Economics of Torts, chapter 1, pages 11-30, Edward Elgar Publishing.
    2. Marie‐Cécile Fagart & Claude Fluet, 2009. "Liability insurance under the negligence rule," RAND Journal of Economics, RAND Corporation, vol. 40(3), pages 486-508, September.
    3. Bernard Black & David A. Hyman & Charles Silver, 2009. "The Effects of “Early Offers” in Medical Malpractice Cases: Evidence from Texas," Journal of Empirical Legal Studies, John Wiley & Sons, vol. 6(4), pages 723-767, December.
    4. David A. Hyman & Bernard Black & Charles Silver, 2011. "Settlement at Policy Limits and the Duty to Settle: Evidence from Texas," Journal of Empirical Legal Studies, John Wiley & Sons, vol. 8(1), pages 48-84, March.
    5. Jihong Lee & Qingmin Liu, 2008. "The Dynamics of Bargaining Postures: The Role of a Third Party," PIER Working Paper Archive 09-001, Penn Institute for Economic Research, Department of Economics, University of Pennsylvania.
    6. Sofia Amaral-Garcia, 2015. "Non-economic Damages in Medical Malpractice Appeals: Does the Jurisdiction Make a Difference?," Discussion Papers of DIW Berlin 1506, DIW Berlin, German Institute for Economic Research.
    7. Christopher T. Robertson & David V. Yokum, 2012. "The Effect of Blinded Experts on Juror Verdicts," Journal of Empirical Legal Studies, John Wiley & Sons, vol. 9(4), pages 765-794, December.
    8. Sofia Amaral-Garcia, 2019. "Medical Malpractice Appeals in a Civil Law System: Do Administrative and Civil Courts Award Non-Economic Damages Differently?," ULB Institutional Repository 2013/301273, ULB -- Universite Libre de Bruxelles.

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