Anti-Anchoring: Tackling High Medical Liability Damage Amounts Through Tort Reform

Summary

Trial lawyers have increasingly been using the “anchoring” technique to inflate the value of medical malpractice verdicts. Combatting this trend will require new defense tactics in the courtroom as well as anti-anchoring legislation.

“We think, each of us, that we’re much more rational than we are.”
—Daniel Kahneman, Nobel Prize winner and forefather of modern behavioral economics

“Anchoring” is an established negotiation technique whereby the first offer or discussion of value moors one’s thoughts to what a reasonable sum of money may be, even if that sum is extreme. And once that sum is anchored, it can be very difficult to adjust the sum toward reality in a person’s perception.

A fundamental concept in behavioral economics that was articulated in the 1970s by psychologists Daniel Kahneman and Amos Tversky, this tactic sets a reference point by triggering cognitive bias, which results in overreliance on information that may be skewed or irrelevant to the facts at hand. The use of this psychological device can happen wherever negotiations occur, including in the courtroom. Trial lawyers have increasingly been using this technique to inflate the value of medical malpractice verdicts, particularly for noneconomic damage award amounts, knowing that jurors can be persuaded to deviate from making strictly rational decisions to instead make decisions based on shortcuts (anchoring) and emotions.

Anchoring is one of the elements that cause higher verdicts and the concerning issue of social inflation, which occurs when the average cost to resolve a medical malpractice claim rises faster than general inflation.

The importance of tackling anchoring was articulated by the American Medical Association in its summary of the Litigation Center of the American Medical Association and State Medical Societies’ 2021 amicus brief filed in the New York Supreme Court, Appellate Division, in the case Redish v. Adler.

“Increasingly, juries in New York are handing out noneconomic damage awards that dwarf prior awards,” the brief says. “Injuries are not becoming more extreme. Rather, plaintiffs’ attorneys are aggressively asking jurors to award extraordinary sums ... Attorneys know that ‘anchoring’—setting an unjustifiably high amount as a baseline—is highly effective, particularly when sympathetic jurors lack objective means to determine compensation for unqualifiable pain.”

Countering Anchoring in the Courtroom and Legislature

Defense attorneys have become more assertive in countering plaintiffs’ attorneys’ use of anchoring maneuvers by offering alternative anchoring values and arguing for more rational calculations of damages. Nevertheless, studies show that juries who are anchored to an elevated damages request award higher verdicts despite being exposed to anti-anchoring arguments.

Policymakers have taken note, and combating anchoring is an ever-increasing debate in the public policy arena. The Doctors Company advocates to maintain existing tort reform such as noneconomic damages caps and to advance new reforms such as regulating third-party litigation funding and anti-anchoring legislation.

Traction was made in Georgia, where an anti-anchoring law was passed, and in Texas, where the state’s Supreme Court found there must be a rational connection between the award and injury. Contrary to these wins, recently introduced legislation in Pennsylvania proposes to change the law to permit anchoring.

Recent Legislative Developments

Georgia SB 68 (2025): This law specifically states, with some exceptions, that counsel shall not argue the worth or monetary value of noneconomic damages, and counsel shall not, in the hearing of the jury or any prospective juror, elicit any testimony regarding, or make any reference to, any specific amount or range of amounts of noneconomic damages, the arbiter of such damages being the “enlightened conscience of an impartial jury.” Counsel is allowed to ask prospective jurors during voir dire whether they could return a verdict that does not award any damages or a verdict in excess of some unspecified amount, provided that such question is supported by the evidence.

Texas Gregory v. Chohan (2023) 66 Tex. Sup. J. 1086: The state Supreme Court held that although the family members offered ample evidence of compensable mental anguish and loss of companionship suffered after decedent was killed in a traffic accident, they did not make a rational connection between the injuries suffered and the amount awarded. The arguments as to the proper amount encouraged the jury to base an ostensibly compensatory award on improper considerations that had no connection to the rational compensation of the family members.

Pennsylvania HB 1913 (2025): This legislation was introduced on October 1, 2025, and immediately referred to the House Judiciary Committee. HB 1913 allows attorneys to present specific lump sums or mathematical formulas for noneconomic damages during closing arguments, provided they disclose their intent to the court and opposing counsel in advance. The bill allows the defendant to argue that an award of any lesser amount is appropriate if liability is found. Additionally, the bill requires that jurors be instructed that the argued amounts are not considered evidence but merely arguments presented by the attorneys.

More anti-anchoring legislation is expected to be introduced in additional jurisdictions as national organizations and state-based advocates continue to raise the alarm.

The Doctors Company continues to advocate for anti-anchoring legislation, knowing that the consequences of excessive awards and social inflation, driven in part by anchoring, contribute to unwarranted damage awards that drive healthcare costs upward and affect patient access to healthcare. 

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The Doctor’s Advocate is published by The Doctors Company to advise and inform its members about loss prevention and insurance issues.

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