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54 DePaul L. Rev. 393 (2004-2005)
Medical Malpractice and the Insurance Underwriting Cycle

handle is hein.journals/deplr54 and id is 403 raw text is: MEDICAL MALPRACTICE AND THE INSURANCE UNDERWRITING CYCLE Tom Baker* Between the idea and the reality, Between the motion and the act, Falls the shadow. I INTRODUCTION The insurance underwriting cycle has become a touchstone in the debate over medical malpractice reform. On the one hand, trial law- yers and others who seek to preserve existing medical malpractice lia- bility rules commonly report that the high-priced, hard market phase of the liability insurance underwriting cycle, and not real devel- opments in malpractice litigation, fueled the medical malpractice in- surance crises of the mid-1970s, mid-1980s, and early 2000s.2 On the other hand, medical associations and others who seek further restric- tive tort reforms claim that those crises represented the long overdue consequences of escalating tort costs that the competitive, soft mar- ket phase of the insurance underwriting cycle had allowed people to wish away.3 Each side accuses the other of using the insurance under- * Connecticut Mutual Professor and Director, Insurance Law Center, University of Connect- icut School of Law. Thank you to: Matthew Dolan, Tammi Dulberger, Sean Fitzpatrick, Chris- tian Lahnstein, Ralph Winter, and participants at the 2004 American Association of Law Schools annual meeting and the 2004 Clifford Symposium for helpful discussions; Brian Glenn, Sean Fitzpatrick, Peter Siegelman, and Ralph Winter for helpful comments on an earlier draft; and Thomas Farrish and John Maroney for research assistance. During the recent hard market I prepared reports for a trial lawyers association and for a leading insurer. Each helped me de- velop my understanding of the insurance underwriting cycle. I do not have a continuing relation- ship with either organization. 1. T.S. Eliot, The Hollow Men, in 2 THE NORTON ANTHOLOGY OF AMERICAN LITERATURE 1225, 1227 (Nina Baym et al. eds., 2d ed. 1985). Thanks to Matthew Dolan, Repeating the Sins of Market Cycles, INSIGHTS, Oct. 2003, at 1, available at http://www.onebeaconpro.com/insights/ insights-vol2_sp.pdf. 2. The American Trial Lawyers Association and their allies point to the analysis of Robert Hunter as reported in, for example, J. Robert Hunter, Consumer Advocate Challenges Insurers on Crisis In Med Mal Mkt, NAT'L UNDERWRITER: PROP. & CASUALTY/RISK & BENEFITS MGMT. EDITION, Oct. 7, 2002, at 10, 10. 3. See generally, e.g., Robert F. Wolf, Actuary Counters Hunter on Med Mal Insurance Crisis, NAT'L UNDERWRITER: PROP. & CASUALTY/RISK & BENEFITS MGMT. EDITION, Nov. 11, 2002, at 10, 10.

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