The “Litigation Explosion”: Myth vs. Facts

By Richard H. Adler, Attorney at Law

A review of recent court caseload statistics shows that there has been a decline in personal injury or tort litigation, not a “litigation explosion.” Actually, tort cases make up only a small percentage of court cases.

Contrary to what the insurance industry gets the media to portray, most Americans who have been injured by the carelessness of others do not file lawsuits or make insurance claims. For example, a Harvard study of medical malpractice found that only 2 percent of people injured by negligent medical care filed suit. (Paul C. Weiler et al., A Measure of Malpractice 73 (1993).)

Of the small percentage of tort cases that are filed, about 75 percent of the cases are resolved through settlement or voluntarily dismissed; only 3 percent go to trial. (Steven K. Smith et al., Bureau of Justice Statistics, Civil Justice Survey of State Courts, 1992: Tort Cases in Large Counties 3 (Apr. 1995).) In addition, personal injury lawsuits make up only about 10 percent of all civil cases filed in state courts of general jurisdiction. (Id. at 2)

These facts are further substantiated in a recent study by the National Center for State Courts, a nonpartisan organization that compiles court statistical data. The study found that tort filings have decreased 16 percent since 1996. (Brian Ostron & Neal Kauder, National Center for State Courts, Examining the Work of State Courts 1998, 8 (1999).)

Medical malpractice and products liability cases constitute a small percentage of civil cases. The study found that in 1996, only 7.7 percent of civil cases brought were medical malpractice claims; products liability and asbestos liability cases comprised only 1.5 percent and 1.2 percent of tort cases respectively. (Id. at 30-31.)

These statistics and studies show a decline in personal injury litigation, not a “litigation explosion.” The facts contrast sharply with the impression created by insurance companies and the media.