I HAVE ATTRIBUTED THE EXPANSION OF THE SCOPE OF TORT liability and the consequent increase in tort system costs to the exceptional contemporary increases in tort lawyers' effective hourly rates. In this chapter, I consider two alternative explanations for the increases in tort system costs: an increase in injury rates, resulting in increased numbers of tort claims; and an increase in the propensity of injured persons to sue.

Propensity to Sue

Only a small percentage of the acts that could give rise to tort liability actually result in formal claims being made. One study indicates that 5 percent or less of those who believed they were victims of another's wrongdoing filed lawsuits. Another study indicated that only one out of every twenty-five patients with a negligent or preventable medical injury brought a medical malpractice claim. Thus, an increase in the propensity of injured parties to bring suit could account, at least in part, for increased tort system costs. With the exception of auto accident litigation, however, there is little data available on whether the propensity to sue for tortious injury has increased. There is, however, circumstantial data that is relevant. For example, tort lawyers engage in substantial advertising efforts to drum up business, which likely increases the public's propensity to sue.