04 August 2009

Tort Facts

A few empirical facts concerning tort law (the law of civil wrongs, primarily accidents, frauds and other intentional harms), from the best available data base of these cases at the trial court level, are worth keeping in the debate about issues like tort reform. The source appears to be in the public domain as a government created report:

* The majority of cases disposed were auto torts (complaints charging
damage caused by a motor vehicle).
* Complex cases involving medical malpractice, product liability or toxic substance together made up about 10% of all tort cases.
* About three-quarters of the cases were disposed through an agreed settlement or voluntary dismissal; 3% by a trial verdict.
* Twenty-eight percent of the approxitely 378,000 tort cases [in the 75 largest U.S. counties] were uncontested, (the defendant did not file an answer to the complaint). . . .

The sample excluded Federal courts, which account for about 4% of all tort cases, and State courts outside the 75 largest counties. (Federal tort case jurisdiction is limited to claims that involve more than $50,000 in damages and in which plaintiffs and defendants are from different States. About a third of tort cases disposed in Federal court in 1992 involved product liability.) Also excluded were tort cases
disposed in States' limited jurisdiction court. (Limited jurisdiction courts have jurisdiction over cases where the amount at stake is below a certain threshold (typically $500 to $25,000.) . . .

In tort cases, plaintiffs allege injury, loss, or damage from negligent or intentional acts of the defendants. Types of cases vary. Over the 1-year period, the two most frequent kinds disposed were from automobile accidents (60%) and premises liability cases alleging harm from inadequately maintained or dangerous property (17%).

Other types of cases included those that are a primary focus of current tort reform activity: product liability (3%), toxic substance (2%), and medical malpractice cases (5%). In 92% of tort cases, the plaintiff cited personal injury as the type of harm involved. Property damage was cited in 5%, and financial loss or injury to reputation was claimed in the remaining 3%. The majority of tort cases involving personal injury (64%) or property damage (60%) were auto torts. . . .

A jury (2%) or bench (1%) trial verdict disposed relatively few cases. Medical malpractice claims (7%) were more likely than product or premises liability, auto, or toxic substance cases to be disposed by a jury or bench trial. . . .

Most tort litigants had an attorney represent them; 3% of the involved a pro se litigant who represented himself or herself.

In 28% of tort cases, the defendant failed to file an answer to the complaint. Failure to answer in a timely manner (usually within 30 to 45 days) gives the plaintiff the right to file a motion for a default judgment. Such uncontested tort cases comprised 81% of all cases disposed by default judgments. Most uncontested cases were disposed by agreed settlement (65%) or dismissed for lack of prosecution or failure to serve the complaint on the defendant (23%). . . .


Total number 5,929,537 100%

Domestic relations 2,448,150 41
Small claims 732,977 12
Contracts 639,783 11
Torts 572,041 10
Real property rights 439,947 7
Estates 606,722 10
Mental health 90,608 2
Civil appeals 93,339 2
Other 305,970 5

. . . .

Mean case processing time from filing to disposition was 19.3 months and the median was 13.7 months. Within 1 year, 44% of all tort cases were disposed, and by 2 years, 74% were disposed.

Case processing was most rapid for auto torts (median of 1 year). One reason for the relatively short processing time was that auto tort cases were among the types with the fewest number of litigants (median of 3). Also, compared to all other types, auto torts were the most likely to have an individual (rather than institutions) as the defendant.

Product liability and medical malpractice cases had a mean processing time of about 2 years. Toxic substance cases took on average 3.5 years from filing to disposition.

Tort cases disposed by a jury or bench trial had a median case processing time of nearly 2 years.

The longest processing time for a sampled case was 14 years and 5 months. . . .

Because tort litigation primarily involves claims or damages related to personal injury, the vast majority (94%) of cases had an individual as the plaintiff. Businesses were plaintiffs in 6% of all tort cases and hospitals and government agencies each were less than 1%. Businesses were the plaintiff in 21% of nonmedical professional malpractice cases, 15% of slander, and 12% of product liability cases. . . . half the cases had an individual as the defendant. Approximately 40% of the tort cases had a business as the defendant.

A majority (70%) of auto cases named an individual as the defendant. In three-quarters or more of premises liability cases (75%), product liability cases (93%), and toxic substance cases (96%), a business was the defendant. Among medical malpractice cases, hospitals comprised 72% of the defendants. . . .

In the 3% of cases which did receive a trial verdict, the plaintiff was the winner in about half of the cases. Among types of cases with sufficient data to permit estimation, outcome varied considerably by type of case. Physicians, hospitals, and other medical service defendants won 74% of medical malpractice cases, but plaintiffs in automobile accident cases won 60% of the cases.


Winner Medical
All cases* Auto malpractice Premises
Plaintiff 53 60% 26% 52%
Defendant 45 36 74 47
Mixed 2 5 0 1
Number of cases 9,553 4,162 1,148 2,212

*Includes [2,131] product liability, toxic substance, and intentional injury cases that could not be estimated separately because of too few sample cases.

Of course, the vast majority of cases that don't go to trial and produce settlements or default judgments are plaintiff wins. (Not all settlements are a win for Plaintiffs, but most are wins for them.)

The data above is a useful, if stale, baseline. An up to the minute report on Medical Malpractice lawsuits is also available.

Medical malpractice premiums are at a thirty year low, medical malpractice insurance company profits are high, tort refomr has little impact on medical malpractice insurance rate changes, and medical malpractice claims are a tiny part of the cost of health care.

Thirty years of inflation-adjusted data show that medical malpractice premiums are the lowest they have been in this entire period. This is in no small part due to the fact that claims have fallen like a rock, down 45 percent since 2000. The periodic premium spikes we see in the data are not related to claims but to the economic cycle of insurers and to drops in investment income. Since prices have not declined as much as claims have, medical malpractice insurer profits are higher than the rest of the property casualty industry, which has been remarkably profitable over the last five years.

Our study also shows that states that have passed severe medical malpractice tort restrictions on victims of medical error have rate changes similar to those states that haven't adopted these harsh measures. Finally, our research makes clear that medical malpractice claims and premiums have almost no impact on the cost of health care. Medical malpractice premiums are less than one-half of one percent of overall health care costs, and medical malpractice claims are a mere one-fifth of one percent of health care costs. If Congress completely eliminated every single medical malpractice lawsuit, including all legitimate cases, as part of health care reform, overall health care costs would hardly change, but the costs of medical error and hospital-induced injury would remain and someone else would have to pay.

By comparison, health insurance company profits are about one percent of total health care costs for insured and uninsured people alike (i.e. about $20 billion), exclusive of health insurance company specific administrative costs and executive compensation not found in government agencies that provide health care.

Basically, tort reform has already run its course in having an impact of medical malpractice claims.


Anonymous said...

From JOHare VP med mal claims:

Claims are down and this is part of the cycle. The forum for med mal needs to be changed to arbitration. Medmal is a singular problem and does not need to be linked to the cost of healthcare. Ask an OB or neurosurgeon what he pays for minimum coverage ! What is reasonable tort reform. Expert affidavits, reasonable statutes of limitations, a cap on pain and suffering- the amount can be debated. Depositions of experts, then a mediation, or better yet arbitration. Pain is subjective and money is objective. What is 4 minutes of 7/10 pain worth? How do you measure it? You cant and until we come up with a ruler,a cap will have to do.
The fix: get med mal out of the court system and into binding arbitration. Why? -The jury system never supplies a jury of peers for a physician, and the arguments they listen to are beyond their education focus. Arbitration also removes that other mouth that needs to be fed- the plaintiff's attorney. They get paid 30-40% of indemnity. Without them, the money goes to the victim and you save 1/3 of the cost of med mal without reinventing the med mal wheel. The victim gets the money. Why isnt this done? -guess. The reasonable solution is aginst the bars self interest. They would still do well by exchanging blockbusters for volume.
The expense of lawsuits? - roughly 40% on indemnity paid. Think about that for a second. My way saves 30% of indemnity, 25% of expense and the money goes to the victim.
In Arbitration - : The arbitors would be physicians with attorneys presenting the arguments to the panel on an hourly basis. Pay them $400 an hour with a $5k retainer and 10% of the award. I'd pay that for both sides. The court system gets cleaned up, and the time from claim to resolution could be measured in months, not years.

MEd mal is like gravity, here to stay and constant. We can deal with it more effectively and reduce the overall financial impact by 30% just by changing the forum.

Andrew Oh-Willeke said...

Med Mal is a pretty poor model for arbitration; the cases are high stakes events for patient and doctor alike. Yet, arbitration is basically lawless, because it is not subject to review on appeal and is no cheaper, although it is usually faster. Both parties appreciate the right to appeal an incorrect verdict.

The hourly and the contingent aren't that different in a typical case; they involves lots of work because they are more involved and harder fought by defendants (for non-economic reasons). The volume for blockbuster model works poorly worker's compensation, and is possible at all due to employer strict liability. Who would front the fees of the loser? Mandatory mediation is already the norm. There is no reason to have special non-economic awards caps in medmal cases.

The jury of peers line is biased towards physicians. Yet, few doctors have much personal knowledge of what constitutes negligence in other specialities. The adversarial expert witness system has problems, but that's a general issue, not a medmal issue.

Malpractice premiums tell us where it is most important for doctors to take more care. Reducing med mal is mostly a matter of implementing better systems, perhaps encouraged by wider vicarious liability.

A better approach would be something along the lines of what we do in domestic airline crash cases.

NTSB type experts with jurisdiction over the entire medical establishment would review all serious incidents and samples of less serious incidents, prepare reports and propose regulations to address problems. It could establish incident reporting requirements. Its reports would be public, and admissible in later litigation. The burden of proof would apply to contests of those findings. It would be immune from liability and not directly impose liability upon others, but jury rejections of its findings would be monitored. Attorneys' fees would be awardable to winners from losers.

Harm as a result of medical procedures (a causation standard) would be presumed to be actionable without regard to a standard of care (a negligence standard), unless an intervening cause (e.g. a Hurricane hitting the hospital during the surgery) overcame that presumption. Liability would be joint and several for the entire group of medical providers involved, subject to secondary allocation of that liability.

Negligence would be determined in a separate forum. In "no harm, no foul" cases, the existing disciplinary process would apply. In harm caused by procedure cases determined for compensation purposes through either a settlement or a verdict, a follow up inquest determing who, if anyone, was professionally negligent would be required.

The NTSB type body would also do analysis at a systems level. Mandatory regional peer groups of doctors with the same specialties would engage in the kind of incident reporting and "lessons learned" analysis that hospital system based doctors engage in..

Damages for future medical expenses would be on a pay as you go basis through a trust fund supported through contributions from responsible medmal insurers, to eliminate the need for speculative testimony from expert witnesses.