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Medical Malpractice: An Empirical Examination of the Litigation Process

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  • Henry S. Farber
  • Michelle J. White

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.

Suggested Citation

  • Henry S. Farber & Michelle J. White, 1991. "Medical Malpractice: An Empirical Examination of the Litigation Process," RAND Journal of Economics, The RAND Corporation, vol. 22(2), pages 199-217, Summer.
  • Handle: RePEc:rje:randje:v:22:y:1991:i:summer:p:199-217
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    References listed on IDEAS

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    Citations

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    Cited by:

    1. 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.
    2. repec:kap:copoec:v:28:y:2017:i:4:d:10.1007_s10602-017-9235-0 is not listed on IDEAS
    3. Theodore Eisenberg & Henry S. Farber, 1996. "The Litigious Plaintiff Hypothesis: Case Selection and Resolution," Working Papers 743, Princeton University, Department of Economics, Industrial Relations Section..
    4. Dari-Mattiacci, Giuseppe & Deffains, Bruno & Lovat, Bruno, 2011. "The dynamics of the legal system," Journal of Economic Behavior & Organization, Elsevier, pages 95-107.
    5. 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.
    6. 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.
    7. Daniel P. Kessler & Mark B. McClellan, 2000. "How Liability Law Affects Medical Productivity," NBER Working Papers 7533, National Bureau of Economic Research, Inc.
    8. repec:bin:bpeajo:v:29:y:1998:i:1998-3:p:1-53 is not listed on IDEAS
    9. 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.
    10. 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.
    11. Zhou, J., 2010. "Access to justice : An economic approach," Other publications TiSEM 9d70f451-35c4-4878-92bf-7, Tilburg University, School of Economics and Management.
    12. repec:kap:ejlwec:v:44:y:2017:i:2:d:10.1007_s10657-016-9540-5 is not listed on IDEAS
    13. 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.
    14. Yasutora Watanabe, 2005. "Learning and Bargaining in Dispute Resolution: Theory and Evidence from Medical Malpractice Litigation," 2005 Meeting Papers 440, Society for Economic Dynamics.
    15. 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.
    16. Ethan M. J. Lieber, 2014. "Medical Malpractice Reform, the Supply of Physicians, and Adverse Selection," Journal of Law and Economics, University of Chicago Press, vol. 57(2), pages 501-527.
    17. Holger Sieg, 2000. "Estimating a Bargaining Model with Asymmetric Information: Evidence from Medical Malpractice Disputes," Journal of Political Economy, University of Chicago Press, vol. 108(5), pages 1006-1021, October.
    18. 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, May.
    19. Joni Hersch, 2006. "Demand for a Jury Trial and the Selection of Cases for Trial," The Journal of Legal Studies, University of Chicago Press, vol. 35(1), pages 119-142, January.
    20. Steven Shavell, 2003. "Economic Analysis of Litigation and the Legal Process," NBER Working Papers 9697, National Bureau of Economic Research, Inc.
    21. 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.
    22. Peter Grajzl & Katarina Zajc, 2017. "Litigation and the timing of settlement: evidence from commercial disputes," European Journal of Law and Economics, Springer, vol. 44(2), pages 287-319, October.
    23. 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.
    24. Jack Hirshleifer & Evan Osborne, 1999. "Truth and the Legal Battle," UCLA Economics Working Papers 790, UCLA Department of Economics.
    25. Henri Fraisse, 2010. "Labour Disputes and the Game of Legal Representation," CESifo Working Paper Series 3084, CESifo Group Munich.

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