David A. Hyman and Charles Silver
Medical malpractice is the best studied aspect of the civil justice system. But the subject is complicated, and there are heated disputes about basic facts. For example, are premium spikes driven by factors that are internal (i.e., number of claims, payout per claim, and damage costs) or external to the system? How large (or small) is the impact of a damages cap? Do caps have a bigger impact on the number of cases that are brought or the payment in the cases that remain? Do blockbuster verdicts cause defendants to settle cases for more than they are worth? Do caps attract physicians? Do caps reduce healthcare spending—and by how much? How much does it cost to resolve the high percentage of cases in which no damages are recovered? What is the comparative impact of a cap on noneconomic damages versus a cap on total damages?
Other disputes involve normative questions. Is there too much med mal litigation or not enough? Are damage caps fair? Is the real problem bad doctors or predatory lawyers—or some combination of both?
This article summarizes the empirical research on the performance of the med mal system, and highlights some areas for future research.