Vanderbilt Law Review


Joanna Shepherd

First Page



A frequently overlooked problem with the current medical liability system is the vast number of medical errors that go uncompensated. Although studies indicate that 1% of hospital patients are victims of medical negligence, fewer than 2% of these injured patients file claims. In this Article, I explain that many victims of medical malpractice do not file claims because they are unable to find attorneys willing to take their cases. I conducted the first national survey of attorneys to explore medical malpractice victims' access to the civil justice system. The results from the survey indicate that the economic reality of litigation forces many contingent fee attorneys to reject legitimate cases. In fact, over 75% of the attorneys in my survey indicate that they reject more than 90% of the cases that they screen. The attorneys explain that insufficient damages and high litigation expenses are their primary reasons for rejecting cases and that several tort reforms have reduced their willingness to accept cases. Moreover, the majority of the attorneys report that they have threshold damage values below which they will not even consider accepting a case. Indeed, over half of the attorneys responded that they will not accept a case unless expected damages are at least $250,000-even for a case they are almost certain to win on the merits. For a case in which winning is less certain, most attorneys require minimum expected damages of $500,000 to accept the case. Because of the high cost of medical malpractice litigation, contingent fee attorneys simply cannot economically justify taking cases with damages below these thresholds. To understand the extent of this access-to-justice problem, I use private-industry claims data to show that 95% of medical malpractice victims will find it extremely difficult to find legal representation unless their damages are significantly larger than the typical damages for their types of * Associate Professor of Law; Emory University School of Law. I thank Steve Ferketic, Amanda Hodgson, and Alan Khedairy for their research assistance. I am also grateful for Jackson Healthcare's assistance in the preparation of my survey. The company allowed me to use their online survey instrument to conduct the survey and provided me access to various contact lists of potential survey respondents. The ideas and conclusions in this paper are my own; they in no way reflect the views of Jackson Healthcare.