Title: Most Claims Settle: Implications for Alternative Dispute Resolution from A Profile of Medical-Malpractice Claims in Florida
Abstract: I INTRODUCTION Past research on the nature and scope of medical-malpractice claims in Florida has found that a very high number of cases are resolved before trial, and, conversely, a very low number of cases are resolved through jury trials. A general survey of the process of medical-malpractice claims resolution in Florida between 1990 and 2003 reveals that 45% of claims resulted in payments, 46% of paid claims were closed in three years, and 96% were closed in six years. (1) Moreover, 20% of paid claims were settled without a lawsuit ever being filed, and only 2.3% of paid claims were resolved following a jury trial. Out of all awards equal to or exceeding one million dollars, approximately 10% were made without a plaintiff ever filing a formal lawsuit, compared to less than 5% of cases resolved through jury trial. (2) Numerous researchers have studied when parties in a legal dispute go to trial and when they settle out of court.(3) These investigations--which often use the Pareto notion of equality (4) tested with game-theoretic models--have focused on the strategic decision-making elements of pretrial settlements. These studies have found that each party's level of information, as well as the rules of the game, affect the likelihood of settlement.(5) The few studies that have used real data to examine settlement rates have found very high pretrial-settlement rates. (6) The dynamics behind these resolution rates--whether they are million-dollar cases, lesser awards, or claims without awards--should be considered in the context of the discovery and procedural rules guiding the claiming process. A study of closed-claim files of major medical-liability insurers clearly demonstrates the importance of the discovery process in resolving claims. (7) Before claims can be settled, both parties need to uncover the facts bearing on the dispute, including both the determination of causality and the presence of legal negligence. Today, a patient in a hospital is often treated by multiple specialists, resident physicians, nurses, and technicians. At the beginning of a claim, no one may know if, which, and how many of these persons might have been negligent. (8) The formal process of discovery can be difficult and time-consuming, and undoubtedly is a primary cause of delay in the settlement of most disputes. A study of North Carolina closed-claim files found that the information-gathering process often resulted in changes in the insurers' evaluations of the cases. (9) For instance, an initial defense expert might say there was no negligence; but after consulting with other experts, the defense lawyer and liability insurer might decide negligence had occurred. Indeed, the variation among experts about the presence of negligence is one of the causes of litigation itself. (10) Deposing the plaintiff's experts might change the insurer's evaluation of the claim's merit still again. Despite claims about nuisance settlements, insurers are reluctant to settle cases unless there is substantial evidence of legal negligence on the part of the insured. (11) Similarly, the results of the discovery process often cause plaintiffs to abandon claims when they conclude that negligence cannot be proven or, in any event, that the costs of litigation would offset any potential recovery. In short, this article contributes to the topic of alternative dispute resolution (ADR) by drawing attention to the frequent and complicated evidentiary problems in medical malpractice claims and the procedural mechanisms provided by statutes, court rules, and case law that are already in place to facilitate claim resolution. Other states have procedural mechanisms similar to those in Florida. As such, while proposed ADR procedures might well provide better resolutions to medical malpractice claims, they must take into consideration both the unique characteristics of medical malpractice disputes and existing mechanisms for resolving these disputes. …
Publication Year: 2011
Publication Date: 2011-06-22
Language: en
Type: article
Access and Citation
Cited By Count: 1
AI Researcher Chatbot
Get quick answers to your questions about the article from our AI researcher chatbot