Abstract

http://ssrn.com/abstract=2465097
 


 



Double, Double Toil and Trouble: Justice-Talk and the Future of Medical Malpractice Litigation


David A. Hyman


University of Illinois College of Law

Charles Silver


University of Texas at Austin - School of Law

July 11, 2014

DePaul Law Review, Vol. 63, 2014
Illinois Program in Law, Behavior and Social Science Paper No. LBSS14-37
U of Texas Law, Law and Econ Research Paper

Abstract:     
It’s not easy being a lawyer. “Biglaw” may not be dead (yet), but major firms have dissolved, filed for bankruptcy, and shed partners and practice groups. Small and mid-sized firms and solo practitioners are facing similar challenges. Some of these developments are attributable to the financial crisis and the Great Recession. Others are the result of structural and technological changes affecting the market for legal services — and those changes have revealed new weaknesses in the business forms through which lawyers have traditionally delivered legal services. To most inhabitants of Biglaw, these changes and challenges are unprecedented, but to lawyers who do medical malpractice and personal injury litigation, market turbulence of this sort is old hat. Over the past three decades, there have been dramatic changes in the market (and demand) for such services. Some of these changes are clearly attributable to legislative action, including caps on noneconomic or total damages, and procedural hurdles such as screening panels, certification requirements, and interlocutory appeals of expert witness reports. But, even in states that have not taken such steps, there has been a long-term secular decline in the volume of medical malpractice litigation. Apart from the highly visible public brawl over the merits of damage caps, these developments have attracted little attention. However, the dynamics are clear to those who wish to pay attention to them. In this Article, we explore these trends, highlight the ways in which they have interacted with one another, and then briefly discuss why it is not helpful to analyze these developments in terms of their impact on “access to justice.”

Number of Pages in PDF File: 14

Keywords: medical malpractice, tort reform, access to justice

JEL Classification: I18, K23, K32

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Date posted: July 13, 2014  

Suggested Citation

Hyman, David A. and Silver, Charles, Double, Double Toil and Trouble: Justice-Talk and the Future of Medical Malpractice Litigation (July 11, 2014). DePaul Law Review, Vol. 63, 2014; Illinois Program in Law, Behavior and Social Science Paper No. LBSS14-37; U of Texas Law, Law and Econ Research Paper. Available at SSRN: http://ssrn.com/abstract=2465097

Contact Information

David A. Hyman (Contact Author)
University of Illinois College of Law ( email )
504 E. Pennsylvania Avenue
Champaign, IL 61820
United States
Charles M. Silver
University of Texas at Austin - School of Law ( email )
727 East Dean Keeton Street
Austin, TX 78705
United States
512-232-1337 (Phone)
512-232-1372 (Fax)
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