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Joanna Shepherd, Justice in Crisis: Victim Access to the American Medical Liability System, Emory Legal Studies Research Paper 12-222 (2012) available at SSRN.

When we think about access to justice, we don’t tend to think about personal injury victims.  Indeed, I recently completed a review of legal needs surveys from seventeen states, conducted between 2007 and 2012.  Attempting to measure the citizenry’s “level of access to the civil justice system,” the surveys generally asked about all manner of legal issues:  consumer problems, housing problems, health problems, employment problems, family problems, and problems obtaining public benefits.  Yet out of these seventeen studies, only four inquired about accidents.

Why this omission?  It’s not that accidental injuries are too rare to merit inclusion.  To the contrary, Deborah Hensler’s classic work, Compensation for Accidental Injuries in the United States, shows that accidents happen with unnerving frequency.  Roughly one in six Americans sustains an accidental injury that results in measureable economic loss each year, and some accidents are serious.  One-third of accident victims’ injuries impose “significant costs on them and on society.”  Likewise, Barbara Curran’s groundbreaking 1977 study, The Legal Needs of the Public, found that “tort problems” (including those involving property damage) were more common than problems involving marital issues, job discrimination, wage collection, landlord-tenant disputes, and other consumer problems, combined.

Nor is it that accident victims turn to lawyers for help at unusually high rates.  Curran found, in fact, that individuals sought lawyer assistance concerning only 11% of tort problems.  To put that 11% in perspective, tort victims sought help from lawyers about as often as individuals sought attorney assistance to resolve consumer disputes or solve problems with governmental agencies—and less often than individuals sought attorney assistance for estate planning or for marital matters.

So, why aren’t we asking about personal injury problems?  In my opinion, accidental injuries are commonly omitted from state legal needs surveys, at least in part, because the drafters of these surveys—as well as the public as a whole—believe that access to justice simply isn’t a problem in this sphere.  The common perception is that it’s not too difficult to find counsel and initiate claims but, rather, too easy; there’s not too little tort liability but, rather, too much; and the contingency fee, “the poor man’s key to the courthouse,” removes any access to justice impediment.

This is where Joanna Shepherd’s recent work, Justice in Crisis:  Victim Access to the American Medical Liability System, comes in—and why it’s so important.  It is the newest addition to a small but growing body of empirical scholarship that challenges this conventional wisdom.  Collectively, this work shows there is a real, and possibly growing, justice gap in some segments of the personal injury marketplace.  Moreover, this literature is now developed to the point where we can not only identify the justice gap, but also start to map it—to see that this gap runs along two perpendicular axes, denying access based both on claim type and claimant characteristics.

In terms of claimant characteristics, a small body of evidence suggests that poor individuals are, and have long been, less likely to find counsel and initiate personal injury claims as compared to their wealthier counterparts.  The first relevant study was conducted more than fifty years ago by Robert Hunting and Gloria Neuwirth.  Studying victims’ behavior in New York City, Hunting and Neuwirth found that following a minor motor vehicle accident, “[t]hose persons with a low [socio-economic status (SES)] are least likely to take action, and as SES increases, the likelihood of action increases.”  More recent studies tell a similar story.  A 1993 study published in the Journal of the American Medical Association found, for example, that poor and uninsured patients were significantly less likely to file medical malpractice claims, after controlling for injury severity.  A 2000 study found much the same.  That study, by David Studdert and co-authors which also focused on medical malpractice, identified both poverty and old age as “risk factors” for being “worthy-but-uncompensated.”  Nor is socio-economic status the only claimant characteristic relevant to the justice gap inquiry.  Work by Lucinda Finley indicates that where noneconomic damage caps are imposed, additional groups of victims, namely, women and children, are more apt to be denied access.

The second dimension of the justice gap involves claim type—and returns us to Joanna Shepherd.  Shepherd recently conducted a national survey of plaintiffs’ attorneys to explore medical malpractice victims’ access to the civil justice system.  In the course of this survey, lawyers with experience representing medical malpractice plaintiffs were asked whether they would accept a med mal case with less than $50,000 in damages, even if the case was a sure thing (with a 95% likelihood of success).  Only 1.18% of Shepherd’s 259 plaintiff attorney respondents said yes.  In fact, deterred by med mal’s complexity and high out-of-pocket investment, most lawyers wouldn’t even accept a slam dunk case with less than $250,000 in damages.  And, when the case’s likelihood of success dropped, lawyers’ selectivity soared.  With a 51% chance of success, most lawyers wouldn’t accept any case below a $500,000 damage threshold.

When one consults Shepherd’s survey data, especially alongside recent studies of Texas plaintiffs’ lawyers conducted by Stephen Daniels and Joanne Martin and a 2006 practitioner survey conducted by Michael Greenberg and Steven Garber of RAND (which both find similar selectivity on the part of plaintiffs’ counsel), a picture starts to emerge.  Though it’s often ignored, a justice gap exists in certain segments of the personal injury marketplace.  Some kinds of claims (especially small and even moderately-sized claims in complex and resource-intensive specialties, such as medical malpractice) and some kinds of people (particularly the poor and those most affected by caps on noneconomic damages, such as the elderly) are destined to be denied access.  The gap might not be as wide as it is in some traditional specialties, but it is real, and it merits attention and further empirical inquiry.

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Cite as: Nora Freeman Engstrom, Bridging the Gap in the Justice Gap Literature, JOTWELL (May 6, 2013) (reviewing Joanna Shepherd, Justice in Crisis: Victim Access to the American Medical Liability System, Emory Legal Studies Research Paper 12-222 (2012) available at SSRN),