Million Dollar Medical Malpractice Cases in Florida: Post-Verdict and Pre-Suit Settlements

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The most up-to-date version of this piece can be found in the Duke Law Scholarship


Beginning about 2000, medical malpractice litigation has occupied a center stage in public controversy about tort reform.1 The cost of medical liability insurance for doctors sharply increased, allegedly doubling in some specialties. Large jury verdicts especially are castigated as unwarranted and corruptive of the system because they set the bargaining rate around which plaintiff and defense lawyers negotiate settlements. One of the most commonly proposed remedies is a cap on the amount that can be awarded for general damages, often called “non-economic damages or just simply “pain and suffering,” following trial by jury.2 Trial lawyers and consumer groups oppose these reforms. They say one problem is a too- high incidence of malpractice and the consequent enormous economic losses of injured patients. They also assert that the increase in the costs of malpractice insurance lies with poor decisions made by liability insurance companies and problems associated with recurrent down turns in the insurance industry business cycle. Systematic empirical data is needed about the many facets of the controversy if public policy choices are to be made wisely. Obtaining such information has been difficult because much of the process of medical malpractice litigation has remained beyond scrutiny. Typically, settlements are confidential and thus legislators, the general public and researchers have been unable to obtain data about crucial questions related to the controversy. However, a closed claim database compiled by the Florida Department of Insurance provides an opportunity to shed important light on these hidden processes. The data are available to the public and contain important information about many variables bearing on the litigation process including settlements as well as jury verdicts. In a first article arising out of our research on the closed claims we developed profiles of the incidence of settlements at various stages of the litigation process, including claims settled without payments; changes in the seriousness of injuries associated with claims; the amounts of settlements; and the insurer’s legal costs.3 The data involved cases settled from 1990 through 2003. The present article extends that research much further by comparing two sets of cases in which the payment to the claimant equaled or exceed $1 million. The first group involves cases that were tried to juries. We systematically compare the verdict with the amount the insurer actually paid. We also go a step further and examine the nature of the injury, including the medical treatment sought and the alleged cause of the injury. The second part of the article examines a group of cases that were settled without a lawsuit. One of the most interesting findings from our earlier article is that, of claims resulting in payments of $1 million or more, fully 10.1 percent were paid without pleadings of any kind. In contrast only 7.5% of paid claims over $1 million followed a jury trial.4 Thus, while jury trials loom large in the public debate, the truly invisible cases—invisible in the sense that they evade the formal court system—constitute an even larger source of payments.5 We ask about the nature of pre-suit cases and compare them to the cases that went to trial and resulted in a plaintiff verdict. Our approach to malpractice litigation issues in this paper involves qualitative as well as quantitative analyses. The qualitative analyses place a concrete face on the nature of the issues and the injuries experienced by patients involved in malpractice claims.

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