Lawyers on Trial: Juror Hostility to Defendants in Legal Malpractice Trials

In contrast to medical malpractice, legal malpractice is a phenomenon that has attracted little attention from empirically-oriented scholars. This paper is part of a larger study of legal malpractice claiming and litigation. Given the evidence on the frequency of legal malpractice claims, there are surprisingly few legal malpractice cases that result in jury verdicts. There are many possible explanations for this, one of which reflects the perception that lawyers are held in such low esteem by potential jurors that they risk harsh treatment by jurors when they are defendants in legal malpractice trials. Because we could find no empirical evidence that that either supported or rejected the reality of this perception, we designed a simple jury simulation experiment to test this as an hypothesis. Using three different case scenarios, each in two forms (one set within a legal malpractice framework and one outside legal malpractice), we found support for the hypothesis in only one of the three scenarios and even there the effects were at best modest. These results held up controlling for other possible factors that might influence juror responses to the case scenarios

Educational Malpractice: When Can Johnny Sue?

This comment explores three avenues to pursue educational malpractice suits. First, a negligence action for malpractice. Second, a cause of action for negligent misrepresentation. And finally, an action sounding in negligence for breach of statutory duty. Each avenue is explored in detail in terms of the likelihood of success. Importantly, the comment recognizes the inherent difficult of pursuing any education malpractice claim

Understanding Medical Malpractice Insurance: A Primer

Analyzes the causes of and potential solutions to address malpractice crises, and discusses how medical malpractice insurance works, why premiums change, and what can be done about it

The Effect of Malpractice Liability on the Delivery of Health Care

The growth of medical malpractice liability costs has the potential to affect the delivery of health care in the U.S. along two dimensions. If growth in malpractice payments results in higher malpractice insurance premiums for physicians, these premiums may affect the size and composition of the physician workforce. The growth of potential losses from malpractice liability might also encourage physicians to practice 'defensive medicine.' We use rich new data to examine the relationship between the growth of malpractice costs and the delivery of health care along both of these dimensions. We pose three questions. First, are increases in payments responsible for increases in medical malpractice premiums? Second, do increases in malpractice liability drive physicians to close their practices or not move to areas with high payments? Third, do increases in malpractice liability change the way medicine is practiced by increasing the use of certain procedures? First, we find that increases in malpractice payments made on behalf of physicians do not seem to be the driving force behind increases in premiums. Second, increases in malpractice costs (both premiums overall and the subcomponent factors) do not seem to affect the overall size of the physician workforce, although they may deter marginal entry, increase marginal exit, and reduce the rural physician workforce. Third, there is little evidence of increased use of many treatments in response to malpractice liability at the state level, although there may be some increase in screening procedures such as mammography.

The Road from Medical Injury to Claims Resolution: How No-Fault and Tort Differ

In the area of medical malpractice, no-fault has been offered as a response to the criticisms leveled against tort litigation for medical injuries. Five issues of no-fault are examined within the context of obstetrical malpractice

Medical Malpractice: Impact of the Crisis and Effect of State Tort Reforms

Reviews research on the malpractice crisis and examines data on how volatile malpractice environments affect healthcare delivery and how state tort reforms affect premiums, frequency of claims, payouts, and physician supply. Considers policy implications

The Effects of Malpractice Pressure and Liability Reforms on Physicians’ Perceptions of Medical Care

Considerable evidence suggests that the medical malpractice liability system neither provides compensation to patients who suffer negligent medical injury nor seeks to penalize physicians whose negligence causes patient injury. The relationship between liability reforms, malpractice pressure and physician perceptions of medical care is examined

Enterprise liability: a prescription for health care reform?

A look at how the cost and quality of medical services in the United States would be affected by enterprise liability, a malpractice reform proposal that would 1) transfer liability in malpractice cases from the doctor to the patient's health care plan and 2) institute no-fault malpractice insurance.Medical care

Enterprise Liability and the Emerging Managed Health Care System

“Enterprise medical liability” is a term used to describe a system in which health care organizations bear responsibility for medical malpractice in addition to or instead of individual health professionals. Enterprise liability is in many senses a natural outgrowth of the increasing dependence of medical practice on institutional resources and expertise. Proposals for enterprise liability surfaced briefly from the academic literature into the political spotlight during the 1993-94 health care reform debate. At that time, objections to the concept as a basis for medical malpractice liability, even in a restructured health care system, were nearly universal. Just five years later, many of the groups vehemently opposing the Clinton malpractice reform have become vigorous supporters of managed care liability. Moreover, courts and legislatures are holding managed care organizations accountable for malpractice in ways superficially compatible with the Clinton proposal. In the process, however, enterprise liability has been transformed from a theory without a movement to a movement without a theory. This article explores why this happened, whether it is likely to be a transitory phase or a sustained trend, and what it portends for the public policy objectives of medical tort law. Part II of this article describes the theoretical justifications for imposing liability for medical malpractice on managed care organizations, emphasizing proposals that were made in connection with the national health care reform debate. Part III explains why enterprise liability failed to attract support in 1993-94. Part IV discusses the very different attitudes that prevail in 1998, and details the legal manifestations of the current movement to expand malpractice liability in managed care. Parts V and VI of the article analyze the relationship among theoretical constructs of enterprise liability, the reality of today’s managed care marketplace, and the legal response managed care has provoked. Specifically, Part V outlines several respects in which the market and the legal system have moved away from characteristics that previously made enterprise liability desirable, and Part VI identifies potentially significant trends that could lead to a rapprochement between our health care system and the public policy justifications for extending malpractice liability to managed care organizations. Finally, Part VII suggests that federal legislation is necessary for malpractice liability to serve socially constructive purposes in managed care, and identifies a set of principles that should guide future legislative action

Medical Malpractice and Physician Liability Under a Negligence Rule

A model of costly medical malpractice claims, based on Bayes Rule, is developed to examine the effects of physicians being liable for actual damage under a negligence rule. This model is consistent with empirical evidence concerning the pattern of claims. It is shown that compensating actual damage does not provide physicians with appropriate incentives to spend the second best optimal amount of time with patients or to treat the second best optimal number of patients. As a result, too much medical malpractice occurs relative to the second best social optimum.Medical Malpractice; Liability