The Receding Tide of Medical Malpractice Litigation Part 1: National Trends

27 Pages Posted: 16 Jul 2012 Last revised: 28 Jan 2015

Date Written: December 15, 2013


The U.S. has experienced three medical malpractice (“med mal”) crises in the past forty years. In response, thirty-one states now have caps on non-economic or total damages. Researchers have studied the impact of these caps, relative to control states without caps, but have not studied trends in no-cap states or overall national trends. We find that the per-physician rate of paid med mal claims has been dropping for 20 years and in 2012 is less than half the 1992 level. Lawsuit rates, in the states with available data, are also declining, at similar rates. “Small” paid claims (payout < $50,000 in 2011 dollars) have been dropping for the full period; “large” paid claims (payout > $50,000) have been dropping since 2001. Payout per large paid claim was roughly flat. Payout per physician have been dropping since 2003, and by 2012 were 48% below their 1992 level. The “third wave” of damage cap adoptions over 2003-2006 contributed to this trend, but there are also large declines in no-cap states.

A companion article, The Receding Medical Malpractice Part 2: Effect of Damage Caps, is available at:

Keywords: medical malpractice, tort reform, damage caps

JEL Classification: I18, K23, K32

Suggested Citation

Paik, Myungho and Black, Bernard S. and Hyman, David A., The Receding Tide of Medical Malpractice Litigation Part 1: National Trends (December 15, 2013). as published in 10 Journal of Empirical Legal Studies, pp. 612-638 (2013), Northwestern Law & Econ Research Paper No. 12-18, Illinois Program in Law, Behavior and Social Science Paper No. LBSS12-13, 7th Annual Conference on Empirical Legal Studies Paper, Illinois Public Law Research Paper No. 13-55, Available at SSRN: or

Myungho Paik (Contact Author)

Hanyang University - College of Policy Science ( email )

222 Wangsimni-ro Seongdong-gu
Seoul, 04763
Korea, Republic of (South Korea)

Bernard S. Black

Northwestern University - Pritzker School of Law ( email )

375 E. Chicago Ave
Chicago, IL 60611
United States
312-503-2784 (Phone)

David A. Hyman

Georgetown University Law Center ( email )

600 New Jersey Avenue, NW
Washington, DC 20001
United States

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