Screening Plaintiffs and Selecting Defendants in Medical Malpractice Litigation: Evidence from Illinois and Indiana

39 Pages Posted: 20 Feb 2018

See all articles by Mohammad Rahmati

Mohammad Rahmati

Sharif University of Technology

David A. Hyman

Georgetown University Law Center

Bernard S. Black

Northwestern University - Pritzker School of Law; Northwestern University - Kellogg School of Management; European Corporate Governance Institute (ECGI)

Jing Liu

University of Illinois College of Law

Charles Silver

University of Texas at Austin - School of Law

Date Written: March 2018

Abstract

Many physicians and tort reform advocates believe that most medical malpractice (med mal) claims are “frivolous.” As evidence, they often rely on reports that only about 20 percent of claims result in a payout. Many physicians and reform advocates also believe that plaintiffs lawyers often sue every health provider with even a remote a connection to the patient. Plaintiffs’ lawyers, however, insist that they screen med mal cases carefully, and when they bring a claim, are selective in whom they sue. Can these perspectives be harmonized? We study this question using databases of every insured med mal claim closed in Illinois during 2000–2010 and in Indiana during 1980–2015, and with semi‐structured interviews with six plaintiffs’ lawyers. We innovate by using defense costs to assess whether plaintiffs’ lawyers take a case seriously. We treat cases with under $5k in defense spending as “nonserious” unless they have a payout over $25k. We find evidence that many “cases” are nonserious—suggesting that screening is an ongoing process that does not end when a case is accepted. Observed success rates are sensitive to whether one counts “claims” (each defendant is a separate claim) or “cases” (one plaintiff vs. one or more defendants), includes pro se and/or only represented cases, and includes all versus only serious cases. If we analyze cases instead of claims and limit to serious, represented cases, we find much higher success rates (43 percent in Illinois; 44 percent in Indiana). Success rates are higher still in cases brought solely against institutional defendants (58 percent in Illinois; 68 percent in Indiana). Plaintiffs’ lawyers are also selective in the number of defendants they sue. In med mal cases involving only physicians and/or institutions, the mean number of defendants is 1.5 in Illinois and 1.8 in Indiana.

Suggested Citation

Rahmati, Mohammad and Hyman, David A. and Black, Bernard S. and Liu, Jing and Silver, Charles, Screening Plaintiffs and Selecting Defendants in Medical Malpractice Litigation: Evidence from Illinois and Indiana (March 2018). Journal of Empirical Legal Studies, Vol. 15, Issue 1, pp. 41-79, 2018, Available at SSRN: https://ssrn.com/abstract=3124646 or http://dx.doi.org/10.1111/jels.12173

Mohammad Rahmati (Contact Author)

Sharif University of Technology

Tehran
Iran

David A. Hyman

Georgetown University Law Center ( email )

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

Bernard S. Black

Northwestern University - Pritzker School of Law ( email )

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

Northwestern University - Kellogg School of Management

2001 Sheridan Road
Evanston, IL 60208
United States
847-491-5049 (Phone)

European Corporate Governance Institute (ECGI)

Brussels
Belgium

Jing Liu

University of Illinois College of Law ( email )

504 E. Pennsylvania Avenue
Champaign, IL 61820
United States

Charles Silver

University of Texas at Austin - School of Law

727 East Dean Keeton Street
Austin, TX 78705
United States

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