Abstract This study analyzes male and female recovery resulting from medical malpractice injuries to discern the importance to the recovery differential of gender differences in recoveries for medical malpractice injuries. We find that the pattern of recoveries follows one similar to that found in studying wage differentials between males and females. Differences in the relative magnitudes of foregone earnings and nonmarket loses are reflected in the composition of recoveries. In addition, we find a recovery gap in which females receive substantially less in recoveries when they receive male's average compensation for medical malpractice injuries. However, only a small portion of the male and female recovery differential is explained by the characteristics of the claims, leaving a substantial portion of the differential unexplained.
Keywords: malpractice, litigation, recoveries, decomposition
The growth in the number and size of medical malpractice claims has been a major public policy issue for almost thirty years. Concern over the issue led to two national malpractice insurance crises in the mid 1970s and 1980s, and a variety of tort reforms. The legislative reforms, which were enacted in all 50 states and the District of Columbia, addressed a variety of problems such as, alternative dispute resolution mechanisms, certificates of merit, limits on attorney fees, public access to National Practitioner Data Bank information on repeat offenders, collateral source offsets, periodic payment of awards, limits on damage awards, use of clinical practice guidelines, and enterprise liability. Medical malpractice litigation has become one of the largest components of the tort system and is widely held responsible in part for the high cost of health care both because its expense is passed along directly in insurance rates and because it compels physicians to practice costly defensive medicine (Harvard Medical Practice Study 1991).
There is now a substantial body of work that evaluates the effects of tort reform legislation and other variables on medical malpractice legislation. Danzon (1984, 1986) analyzed the contributions of various factors, including tort reform laws, to changes in the frequency and severity of malpractice claims over time and across states. Sloan et al. (1989) used malpractice cases throughout the United States to analyze the effects of various tort reform laws on the probability that there will be a recovery, the amount of the recovery, and the time required for a claim to be resolved. Coyte et al. (1991) studied the determinants of the frequency and severity of Canadian malpractice claims. Barker (1992) used statewide data to analyze the effect of tort reforms on the relative price of malpractice insurance. Farber and White (1991), analyzing malpractice claims against a single hospital, found that the quality of medical care was important in determining malpractice liability, whether there is a recovery and, if so, the amount paid. Bovbjerg (1989) provides a useful survey of all types of legislation that have affected medical malpractice; laws concerning insurance regulation, the quality of medical care, and tort reform.
Despite the enormous public and legislative interest about medical malpractice claims, developments in legal doctrines and legal procedures have not been able to comprehensively address the variety of medical malpractice problems. Research on the connection between negligent medical care and legal liability is essential in improving equitable fault determination and standards. There are several commonly held beliefs about the current legal processes relating to medical liability and malpractice. One theory proposes that lay juries are not capable of fact-finding in complicated medical cases. Another speculates that procedural rules and requirements for establishing legal causation are overly complex and do not include the scientific methodology necessary for accurate determination of medical causation, while yet another says that the legal process does not effectively reject merit less claims, while significant numbers of individuals injured by negligent medical care do not file claims. …