The “Black Hole” in “Medical Malpractice” Cases: When Litigation Costs Exceed Practical Value
Published .
What the “black hole” means
A “black hole” describes a potentially legitimate malpractice claim that cannot reasonably be pursued because the cost of obtaining qualified medical review and proving the case may consume or exceed its likely practical value. This is an economic screening problem, not a conclusion that the care was proper or that the injury is unimportant. A grave outcome alone does not establish malpractice; the case also needs evidence of a professional departure, causation, and compensable loss.
Why costs arise early
Maryland requires a claimant to file a certificate from a qualified expert, with the expert’s report, within 90 days after filing the claim, subject to statutory provisions for extensions and other exceptions. The expert must support both a departure from the applicable standard of care and proximate causation. That early requirement can mean paying for medical-record review and a qualified expert before the merits are fully tested. More experts, depositions, discovery, and trial preparation may later be needed to prove standard of care, causation, and damages. HCADRO is part of Maryland’s statutory process; it does not replace expert proof, and moving through the process can add procedural work.
How to assess practical value
A careful early evaluation compares the evidence and likely recoverable damages with the cost and risk of prosecuting the claim. Relevant factors may include whether the injury is permanent, the cost of future care, past and future lost income, available proof of causation, the number of providers or specialties involved, applicable noneconomic-damage limits, available insurance, and the expert work required. These are estimates, not guarantees. A claim should not be rejected simply because it is difficult, and the seriousness of an injury should not be confused with the legal or economic value of a case.
Ways to manage the expense
Several practices can make the decision more informed and reduce avoidable expense: obtain and organize the relevant records early; screen the central liability and causation questions before commissioning broad expert work; retain additional experts only when the evidence shows they are needed; focus the case on the providers and issues supported by evidence; and reassess the budget as records, expert opinions, and damages information develop. Where appropriate, experienced co-counsel can share work and expense. A written agreement should explain who advances costs, what expenses may be charged, and what happens if there is no recovery. Maryland’s professional-conduct rule permits an attorney to advance court costs and litigation expenses, with repayment contingent on the outcome, but the fee agreement controls the client’s obligations and practices vary.
Do “Malpractice Claims” Drive “Insurance Premiums”?
Malpractice claims are one input into malpractice-insurance costs, but a filed lawsuit does not automatically produce a matching premium increase, and claim counts alone do not explain every rate change. Studies have reached different conclusions about how strongly claim payments drive premium increases. A U.S. Government Accountability Office review of seven states found that losses on malpractice claims appeared to be the primary driver of premium increases over the long run, while investment income, reinsurance costs, competition, and insurance-market cycles also affected rates. By contrast, an academic study by Katherine Baicker and Amitabh Chandra concluded that increases in malpractice payments did not appear to be driving premium increases in the data they analyzed. The often-cited figure of roughly 1% concerns malpractice premiums as a share of total health-care spending; it does not mean only 1% of malpractice-insurance premiums goes toward claims. The NAIC’s 2025 national data report a 75.60% ratio for incurred direct losses plus defense and cost-containment expenses compared with direct premiums. That ratio includes insurer defense costs and is not a measure of the causal effect of claims on future rates. The sound conclusion is that the relationship is not one-to-one and should be assessed using the right data, time period, specialty, and market.
Ideas for broader reform
The larger access-to-justice problem calls for discussion beyond any single firm’s case selection. Possible reforms include a carefully administered, means-tested expert-review fund for claims that pass an independent preliminary screen; pooled or reduced-cost access to qualified experts; early neutral evaluation after focused record review; and grants or recoverable advances for necessary expert costs, with clear safeguards for independence, conflicts, and repayment. A pilot program could measure whether these approaches identify viable claims earlier and reduce unnecessary expense without weakening expert standards or defendants’ opportunity to respond. These are policy proposals, not existing Maryland programs or guaranteed sources of funding.
A candid decision based on evidence
No screening method can promise that a claim will succeed or that its recovery will justify its expense. Not every adverse medical outcome is negligence, and a potentially meritorious case may still be impractical to litigate. The goal is a transparent, evidence-based decision made early enough to protect deadlines, explain the economics candidly, and identify responsible ways to share or reduce necessary costs.
Related Maryland Cases and Authorities
and sources: Md. Code, Cts. & Jud. Proc. §§ 3-2A-04, 3-2A-06B; Maryland Attorneys’ Rules of Professional Conduct 19-301.8(e); Maryland Health Care Alternative Dispute Resolution Office; U.S. Government Accountability Office, GAO-03-702, Medical Malpractice Insurance: Multiple Factors Have Contributed to Increased Premium Rates (2003); U.S. Department of Health and Human Services, Addressing the New Health Care Crisis: Reforming the Medical Litigation System to Improve the Quality of Health Care (2003); Katherine Baicker & Amitabh Chandra, The Effect of Malpractice Liability on the Delivery of Health Care, NBER Working Paper No. 10709 (2004); National Association of Insurance Commissioners, Medical Malpractice Insurance (updated Apr. 1, 2026).