Previous empirical studies have speculated about the role that factors other than negligence play in the resolution of medical malpractice claims. The present study identifies and evaluates the ...impact of three “strategic variables” in the medical malpractice litigation process: the witness potential of the defendant physician, the witness potential of the plaintiff, and the reputation of the plaintiff's attorney. These factors, unrelated to standard of care, make a difference in the outcome of medical malpractice cases. Data were collected from insurance company files on cases filed in the North Carolina state courts between 1991 and 1995. Analyses revealed that when the insurers’ outside (physician) reviewers rated liability as probable, based on standard of care, settlement occurred in most of the cases. However, when liability was rated as uncertain or unlikely, strategic variables such as perceived witness potential and the reputation of the plaintiff's counsel were significant predictors of case outcome. Cases in which the defendant physician had a strategic advantage were much less likely to settle, while cases in which the plaintiff had a strategic advantage were much more likely to settle.
We conduct an analysis of the jurisdictional dispute over the management of medical malpractice lawsuits, focusing on the process through which liability is defined. We utilize a North Carolina ...sample of physicians who have been sued, their defense counsel, and counsel for the plaintiff in the case. A comparison of the perspectives of these three parties reveals that over half of the physicians who settle perceive themselves as not liable. Defense counsel are more adept at predicting both negotiated resolutions and whether or not money will be paid than either plaintiffs' counsel or physicians. Almost two-thirds of physicians who thought they were not liable expressed a desire for vindication. Almost half the time when the physicians denied liability money was nonetheless paid to resolve the claim. Physician responses to the outcome of their cases focus on the need for reform, especially in terms of a call for peer or expert review. We identify and discuss culture conflict between law and medicine. For lawyers "settlement" is not a negative thing, but for physicians it implies fault. We challenge existing literature which analyzes the settlement of medical malpractice claims solely in terms of rational economic models, and we argue that social psychological variables are equally important.
Professors at Duke Law School attempted to develop a broad array of advanced courses and seminars that directly deal with ethical problems that arise in specific lawyering contexts. Metzloff reports ...on the efforts to pursue this pedagogical development in legal ethics courses.
The ability of juries to resolve malpractice suits was studied. Results showed that most of the time, jury outcomes represent a fair resolution of the claim, but the risk that the result will not be ...fair is real and troubling.
The use of mediation in the medical malpractice context is examined. The impact of any court-related alternative dispute resolution program is also discussed.
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