HealthLawProf Blog

Editor: Katharine Van Tassel
Concordia University School of Law

Sunday, March 6, 2005

Medical Malpractice - Unintended Consequences

Professor Catherine M. Sharkey, Columbia Law School, has written an interesting and extremely informative article entitled "Unintended Consequnces of Medical Malpractice Damages Caps" to be published in the New York University Law Review this May.  It might be a helpful read for those in Washington considering a national damage cap.

The abstract is below:

Previous empirical studies have examined various aspects of medical malpractice damages caps, focusing primarily upon their overall effect in reducing insurance premium rates and plaintiffs' recoveries, and other effects such as physicians' geographic choice of where to practice. Experimental studies have focused attention upon the possible "anchoring" effect of caps, which might inadvertently increase award amounts. This Article is the first to explore an unintended crossover effect that may be dampening the intended effects of caps.

This Article posits that, where noneconomic damages are limited by caps, plaintiffs' attorneys will more vigorously pursue, and juries will award, larger economic damages, which are often unbounded. Implicit in such a crossover effect is the malleability of various components of medical malpractice damages, which often are considered categorically distinct, particularly in the tort reform context. This Article challenges this conventional wisdom.

My original empirical analysis, using a comprehensive data set of jury verdicts from 1992, 1996, and 2001, in counties located in 22 states, collected by the National Center for State Courts, concludes that the imposition of caps on noneconomic damages has no statistically significant effect on overall compensatory damages in medical malpractice jury trial verdicts or final judgments. This result is consistent with the crossover theory. Given the promulgation of noneconomic damages caps, the crossover effect may also partially explain the recently documented trend of rising economic (as opposed to noneconomic) damages in medical malpractice cases.

You can find the full article here. [bm]

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