The Milbank quarterly
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This article reviews the empirical literature on the effects of damages caps and concludes that the better-designed studies show that damages caps reduce liability insurance premiums. The effects of damages caps on defensive medicine, physicians' location decisions, and the cost of health care to consumers are less clear. ⋯ Some state courts have based decisions declaring damages caps legislation unconstitutional on the lack of evidence of their effectiveness, thereby ignoring the findings of conflicting research studies or discounting their relevance. Although courts should be cautious in rejecting empirical evidence that caps are effective, legislators should consider whether they benefit consumers enough to justify limiting tort recoveries for those most seriously injured by malpractice.
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Enacted caps on malpractice awards and proposed early offer reform address the sometimes excessive verdicts of conventional liability and its very high overhead costs. However, such reforms greatly benefit medical defendants while doing too little for claimants or patients in general. ⋯ Broad reforms, however desirable, seldom surmount high political and practical hurdles. A good, more evenhanded start would seek to make claims resolution faster, more accurate, more predictable, and less expensive, while separately promoting medical quality and safety as well as greater transparency for law, medicine, and insurance.
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The Milbank quarterly · Jun 2007
CommentCommentary: binding early offers versus caps for medical malpractice claims?
Like damages caps, early offer reform promises reduction in the costs of medical liability cases. In contrast to damages caps, early offer reform offers advantages to both claimant and defendant. ⋯ This commentary(1) explains how an early offer reform might work and summarizes data from a recent closed claim study of medical malpractice cases in Texas and Florida. The data show widespread opportunities for successful early offers and provide evidence that substantial per case savings would result.