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In medical malpractice litigation, how the standard of care is determined is of obvious importance, since failure by a defendant-physician to meet the relevant standard of care constitutes negligence. Any effort to reform how standard-of-care determinations are made should start with an understanding of the entire claims resolution process. The usual image--that of opposing 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 insurers' closed claims files, representing a sample of medical malpractice lawsuits filed in North Carolina between 1991 and 1995, as well as the matching court files. As a result, we obtained 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 empirical, scientifically-based inquiry would not be likely to change the dynamics of the settlement process, where the emphasis is on bargaining and negotiation, rather than on reaching conclusions about the standard of care.

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