Vanderbilt Law Review

First Page



Beginning around the year 2000, the cost of medical liability insurance for doctors sharply increased, allegedly doubling in some specialties. As a result, medical malpractice litigation has once again occupied center stage in public debate about tort reform.' Large jury verdicts are cited by insurers, physicians, and defense attorneys as unwarranted and corruptive of the medical system because they set the bargaining rate around which plaintiff and defense lawyers negotiate settlements. One of the most commonly proposed remedies is a cap on the amount that can be awarded for general damages, often called "non-economic damages" or "pain and suffering," following trial by jury.

Trial lawyers, consumer groups, and some independent scholars oppose these reforms. They say one problem is a high incidence of malpractice and consequent enormous economic losses for injured patients. They also assert that the reason for the increase in cost of malpractice insurance is poor decisions made by liability insurance companies and problems associated with recurrent downturns in the insurance industry business cycle, rather than underwriting experiences.

Systematic empirical data is needed about the many facets of this public policy controversy. Obtaining such information is difficult because much of the process of medical malpractice litigation has been beyond scrutiny. Typically, settlements are confidential and thus legislators, the general public, and researchers have been unable to obtain data about crucial questions bearing on the controversy. However, a closed claim database compiled by the Florida Department of Insurance sheds important light on these hidden processes. The data are available to the public and contain important information about many variables bearing on the litigation process, both settlements and jury verdicts. In the first article arising out of our research on the closed claims we developed profiles of the incidence of settlements at various stages of the litigation process, including claims settled without payments; changes in the seriousness of injuries associated with claims; the amounts of settlements; and the insurer's legal costs. The data involved cases settled from 1990 through 2003.