The Federalist Society

Costing "Early Offers" Medical Malpractice Reform: Trading Non- Economic Damages for Prompt Payment of Economic Damages

October 1, 2006

Jeffrey O'Connell, Jeremy Kidd, Evan Stephenson

In personal injury cases, the current system of tort liability has long been unworkable, especially because the insured event is extremely complex. Under the current system, a plaintiff must prove two difficult elements: the defendant’s fault and the economic value of noneconomic damages, mostly pain and suffering. In medical malpractice cases, determining not only the value of pain and suffering, but particularly fault, is an especially complex process. As a result, the system is fraught with uncertainties, which in turn cause excessive costs and delay for both sides. In the end, we do not have a sensible insurance system that results in prompt payment to needy victims. Rather, we have a system that results in prolonged, expensive fights over whether claimants are deserving. This system operates to the great detriment of both patients and health care professionals.


The Federalist Society