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Saturday, January 12, 2008

Torts in Tennessee: Empirical Data

Over at Day on Torts, John Day is analyzing the 2006-2007 "Annual Report of the Tennessee Judiciary."  Day cites some interesting general statistics.  For instance, total damages awarded in personal injury and death cases were less than half those awarded in the prior year ($94,500,000 in '05-06, $44,600,000 in '06-07).  Also, the total number of tort cases filed has dropped in the last 10 years.  About 5% of all tort cases end up going to trial (jury and non-jury).  (I believe that is a little higher percentage than some national statistics I have seen in recent years.)

Then Day focuses on medical malpractice cases.  There were 584 med mal cases filed in Tennessee in the year covered by the report.  Of those, only 15 went to trial.  Using national statistics, Day calculates that is far too few cases compared with the number of injuries caused by medical error.  By way of partial explanation, Day states that lawyers will not take "small" med mal claims.  Those of us who practiced in the area know that is true.  The late Gary Schwartz noted that, in 2002, it cost at least $50,000 to hire experts for a med mal case.  He stated that a case had to be worth in excess of $100,000 before a lawyer would take the risk of going forward.  The rest of Day's analysis is here and here.

--CJR

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Comments

Day makes a mistake in conflating "medical error" with actionable "medical malpractice."

Posted by: Ted | Jan 12, 2008 3:55:05 PM

I have not seen this particular report but have read many anual reports from various states. It is true that "med-mal"is often either not counted as its own category, or could overlap with some other category. For courts that do count med-mal, most have not done so for long, making comparisons difficult.

Tennessee did not respond to this survey but see: http://www.ncsconline.org/WC/CourTopics/statelinks.asp?id=128&topic=MedMal

Also: http://www.ncsconline.org/WC/CourTopics/statelinks.asp?id=127&topic=MedMal

and: http://www.ncsconline.org/D_Research/csp/CSP_Main_Page.html

Posted by: Anne | Jan 12, 2008 5:00:14 PM

Ted: no I don't. I have practiced in the field for 26 years and understand the difference. If I did not, I would have filed many of the 736 potential medical cases I turned down in 2007. What is the basis for your comment?

Anne: it is always possible that the court clerks have made an error. Tennessee has required clerks to keep the data for two years but I they had started the mandate earlier.

I will say that the data is consistent with anecdotal evidence: filings are down, trials are down, verdicts for the patient are basically non- existent, and therefore settlement values are down. Today I see very aggressive medical malpractice defense practices and settlement offers, if any, come late. The number of depositions have increased, the length of the depositions has increased, and the number of experts declared by the defense has increased.

For example, I have a med mal trial in February. I have two experts. The defense has 12.

I have spent $50K on the case to date. If the defense is paying their experts (and many times they don't have to because many of them are insured by the same bedpan mutual) their costs must be well over $100,000.

And this, but the way, is a relatively simple case. Hotly disputed facts, but the medicine is pretty simple.

Posted by: John Day | Jan 13, 2008 5:54:58 AM

Oh, as far as I've ever seen, tort filings and jury trials are down, down, down. No doubt. Just wanted to add those links & note the difficulty of gathering sane stats. There are no reliable national medmal numbers, only some state figures, and those, too have issues.

Posted by: Anne | Jan 13, 2008 11:26:05 AM

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