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The Receding Tide of Medical Malpractice Litigation: Part 1—National Trends


  • Myungho Paik,

  • Bernard Black,

  • David A. Hyman

  • We thank Celeste Griffin-Churchill and Katherine Klein for able research assistance; and the JELS referees, Michael Frakes, Michelle Mello, Max Schanzenbach, Kathryn Zeiler, and participants in the 2012 Conference on Empirical Legal Studies, a 2013 Medical Malpractice Roundtable at University of Texas Law School, and a workshop at Northwestern Law School for comments.


The United States has experienced three medical malpractice (med mal) crises in the past 40 years. In response, 31 states now have caps on noneconomic or total damages. Researchers have studied the impact of these caps, relative to control states without caps, but have not studied trends in no-cap states or overall national trends. We find that the per-physician rate of paid med mal claims has been dropping for 20 years and in 2012 was less than half the 1992 level. Lawsuit rates, in the states with available data, are also declining, at similar rates. “Small” paid claims (payout < $50,000 in 2011 dollars) have been dropping for the full period; “large” paid claims (payout ≥ $50,000) have been dropping since 2001. Payout per large paid claim was roughly flat. Payouts per physician have been dropping since 2003, and by 2012 were 48 percent below their 1992 level. The “third wave” of damage cap adoptions over 2003–2006 contributed to this trend, but there are also large declines in no-cap states.