Do Noneconomic Damages Caps and Attorney Fee Limits Reduce Access to Justice for Victims of Medical Negligence?

Journal of Empirical Legal Studies (Impact Factor: 1.4). 12/2009; 6(4):637 - 686. DOI: 10.1111/j.1740-1461.2009.01156.x

ABSTRACT We analyze effects of noneconomic damages caps and attorney fee limits (AFLs) on the ability of people injured by negligent physicians to retain qualified lawyers to represent them. We employ survey data from 965 plaintiffs' attorneys who reported likelihoods of accepting hypothetical meritorious cases described by scenarios. We estimate how willingness to accept such cases increases with the expected hourly fees associated with them, and the estimates suggest substantial effects and plausible tradeoffs. We conclude that caps and AFLs make it harder to retain counsel in various circumstances, and we present policy simulations elucidating how several factors combine to determine these effects.

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    ABSTRACT: Previous research and commentary have suggested that the American plaintiffs’ bar is heterogeneous, and populated by firms with a range of characteristics, portfolio management strategies, and client recruiting techniques. Medical malpractice has been characterized as a narrow specialty within an already specialized segment of the legal profession. The purpose of this study is to examine patterns of specialization among plaintiffs’ firms that handle medical malpractice cases or have an interest in doing so, using data from 965 plaintiffs’ attorneys who responded to a 2006 national survey. We find significant bivariate and multivariate associations between measures of specialization in medical malpractice and firm-level characteristics, including firm size, case-taking selectivity, use of dollar-value thresholds in screening cases, and fraction of clients living near the firms’ offices. Our results suggest that: (1) specialization in medical malpractice involves a somewhat different set of professional attributes than does specialization in plaintiff-side contingency work more generally; (2) specialization in medical malpractice is significantly associated with several of the firm-level characteristics listed above; but (3) specialization is nevertheless difficult to predict with any confidence from any of these characteristics, either singly or in combination.