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37 Wake Forest L. Rev. 877 (2002)
The Process of Managing Medical Malpractice Cases: The Role of Standard of Care

handle is hein.journals/wflr37 and id is 887 raw text is: THE PROCESS OF MANAGING MEDICAL MALPRACTICE CASES: THE ROLE OF STANDARD OF CARE* Ralph Peeples** Catherine T. Harris*** Thomas B. Metzlofl*** In medical malpractice litigation, how the standard of care is determined is of obvious importance, since failure by a defen- dant-physician to meet the relevant standard of care constitutes negligence. Any effort to reform how standard-of-care determi- nations are made should start with an understanding of the en- tire claims resolution process. The usual image-that of oppos- ing experts testifying at trial-is both incomplete and misleading. Most cases are either settled by the parties or abandoned by the plaintiff, short of trial. We reviewed insur- ers' closed claims files, representing a sample of medical mal- practice lawsuits filed in North Carolina between 1991 and 1995, as well as the matching court files. As a result, we ob- tained unique and highly detailed information about these cases. In this Article we report on our findings, as they relate to the insurer's assessment of the standard of care. We conclude that a shift in standard-of-care determinations to a more em- pirical, scientifically-based inquiry would not be likely to change the dynamics of the settlement process, where the em- phasis is on bargaining and negotiation, rather than on reach- ing conclusions about the standard of care. I. INTRODUCTION Standard of care is the eight-hundred-pound gorilla in medical malpractice litigation. Everyone agrees it is important, and a num- * This research was supported with funding from the Robert Wood John- son Foundation, Princeton, New Jersey, Grant I.D. #027071. ** Professor of Law, Wake Forest University. *** Professor of Sociology, Wake Forest University. **** Professor of Law, Duke University.

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