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

14 Pages Posted: 13 Jul 2014

See all articles by David A. Hyman

David A. Hyman

Georgetown University Law Center

Charles Silver

University of Texas at Austin - School of Law

Date Written: July 11, 2014


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.”

Keywords: medical malpractice, tort reform, access to justice

JEL Classification: I18, K23, K32

Suggested Citation

Hyman, David A. and Silver, Charles M., 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 No. E557, Available at SSRN:

David A. Hyman (Contact Author)

Georgetown University Law Center ( email )

600 New Jersey Avenue, NW
Washington, DC 20001
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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