Torts - Cases, Principles, and Institutions Fifth Edition, 2016a

Witt & Tani, TCPI 4. Negligence Standard
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Source: Data obtained from Wayne Green, State Malpractice Judgments Down 28 Percent Since 2009, TULSA
WORLD, July 31, 2012, available at https://perma.cc/2SNT-5TPU.
These state-level trends are not aberrations. A recent study of nationwide medical
malpractice claims showed that between 1994 and 2014, the rate of medical malpractice claims
paid on behalf of physicians decreased by 55.7 percent. Adam C. Schaffer, M.D., et al., Rates and
Characteristics of Paid Malpractice Claims Among US Physicians by Specialty, 1992-2014,
JAMA INTERN. MED. (Mar. 27, 2017), https://perma.cc/L5PZ-JKNE.
2. Medical malpractice and insurance premiums. Doctors complain mightily (and often
with good reason!) about the costs of their malpractice insurance. Physicians’ insurance
premiums rose in the 1970s, 1980s, and 2000s. But the increase does not seem to have been
driven by a medical malpractice crisis. Through studying Texas Department of Insurance data,
Bernard Black and his co-authors argue that the number of large paid malpractice claims (over
$25,000 per claim in constant 1998 dollars) was constant from 1991 to 2002. The number of
small paid claims (less than $10,000 per claim in constant 1998 dollars) actually declined over the
same period. See Bernard Black, Charles Silver, David A. Hyman & William M. Sage, Stability,
Not Crisis: Medical Malpractice Claim Outcomes in Texas: 1988-2002, 2 J. EMPIRICAL LEGAL
STUD. 207, 207 (2005).
3. Changing the supply of physicians? Rising premiums, however, “seem not to have an
effect on the total number of physicians in each state.” Katherine Baicker & Amitabh Chandra,
Defensive Medicine and Disappearing Doctors, 28 REG. 24, 29 (2005). Older practitioners in
rural areas may leave their practices when premiums increase because they have “fewer patients
over whom to spread their increased costs of malpractice premiums.” Id. But it is not clear that
these departures wouldn’t have happened anyway even absent any change in medical malpractice
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