Question

Compare another state with Pennsylvania in terms of malpractice actions. Are the number and size of jury verdicts for the plaintiff's increasing or decreasing? Is this consistent with the public's generally held beliefs about malpractice? Why or why not

Answer 1

Juries in medical malpractice trials are viewed as incompetent, antidoctor, irresponsible in awarding damages to patients, and casting a threatening shadow over the settlement process. Several decades of systematic empirical research yields little support for these claims. This article summarizes those findings. Doctors win about three cases of four that go to trial. Juries are skeptical about inflated claims. Jury verdicts on negligence are roughly similar to assessments made by medical experts and judges. Damage awards tend to correlate positively with the severity of injury. There are defensible reasons for large damage awards. Moreover, the largest awards are typically settled for much less than the verdicts.

Introduction

In 1988, a task force of the American Medical Association asserted that “problems with medical malpractice juries include decisions that are not based on a thorough understanding of the medical facts and awards that increase at an alarming rate and in a fashion that seems uniquely to disadvantage physicians as compared with other individuals who have acted negligently” [. In 2003, the AMA claimed that “[t]he primary cause of the growing liability crisis is the unrestrained escalation in jury awards that are a part of a legal system that in many states is simply out of control” [1]. In 2008, there were continuing claims of a crisis with calls for a cap on the pain and suffering component of jury awards, presumably because juries are some combination of incompetent, antidoctor, and irresponsible .

Systematic empirical research on the jury system collected over the past several decades yields evidence inconsistent with these claims. This brief article will review some of the findings, but to do so, I will also describe the jury system for context.

Incidence, Cost, and Claiming Rates

It is crucial as a first step to acknowledge medical negligence does occur. Even though the size of the estimates of its incidence vary and are contested, even the lowest estimates conclude that annual death rates across the United States for this cause number at least 100,000 persons and many more suffer serious injuries, some of them grave .

Estimates of the cost of negligent medical injuries must take into account not only past and future medical expenses but also lost income. One study published in 1989 examined the economic costs for serious birth injuries and injuries that occurred in emergency rooms . Adjusted to 2008 dollars, the average loss for birth injuries was $2.5 million and for emergency room incidents it was $2.3 million. For patients who died as a result of negligent emergency room treatment, the economic losses were estimated at $1.1 million in 2007 dollars.

Research from a number of studies yields estimates that only about one in 25 patients with a negligent or preventable medical claim brought a lawsuit against the health provider . There are various reasons why the claiming rates are so low relative to incidence. These include reluctance to sue the doctor who is perceived as trying to help, the tendency to attribute the adverse outcome to the underling illness for which they sought treatment rather than a result of negligence, and the inability to find a lawyer willing to file a lawsuit because of the low probability of success [36]. Nevertheless, the Henry J. Kaiser Foundation reported that in 2006 there were 12,513 paid claims in the United States, resulting in an aggregate total payment of almost $4 billion involving approximately 13 out of 1000 active, nonfederal physicians

The Incidence and Outcomes of Jury Trials

Juries decide only about 7% of medical malpractice lawsuits ]. In 2001, the latest year for which there are reliable figures, the U.S. Bureau of Justice Statistics estimated that in the nation’s 75 largest counties there were over 1100 malpractice cases tried before juries [

Plaintiffs won only 27% of these trials, about one case in four [8]. However, when the plaintiffs did win, the median award was $422,000, a figure well above median awards in torts and other civil lawsuits. And 16% of the time, the award equaled or exceeded $1 million Punitive damages are rarely awarded in malpractice cases except in cases of gross malfeasance, such as sexual assaults on patients or fraudulent altering of medical recordsin 2001, for example, there were only 15 punitive awards out of 1156 medical malpractice trials in the nation’s 75 largest counties; the median punitive award in these cases was $187,000; two punitive awards exceeded $1 million

The fact that plaintiffs won approximately one case in four tried before a jury—or stated in the obverse, doctors won three out of four trials—suggests that juries do not automatically side with patients over doctors. However, the statistics hide something that needs to be recognized. Some of the patients who lost at trial did not come away empty-handed. In some instances more than one healthcare provider may be named in the lawsuit. For some of the defendants, their legal negligence is reasonably clear and they settle prior to trial, sometimes for major amounts of money, leaving the remaining defendant or defendants. Compared to defendants who settled, the evidence of negligence is relatively weaker against these defendants who remain in the lawsuit and they prevail at trial ]. This partly explains patients’ poor win rates before juries.

As noted above, a substantial portion of jury awards exceed $1 million; and these cases make the newspaper headlines. Recent research by Vidmar et al. examined comprehensive medical insurers’ closed claim files that were required to be reported to the Florida Department of Insurance. Between 1990 and the end of 2004 there were 801 cases involving payments of $1 million or more. Only 54 of those payments were made after a jury trial. The rest involved settlements before trial. Of particular interest, there were 115 cases in which a payment of $1 million or more was paid without a lawsuit ever being filed. Thus, voluntary settlements without a lawsuit were twice as common as payments following jury verdicts. Presumably the no-lawsuit payments were made because the liability was so clear that it made no sense to dispute the case and incur heavy legal fees for a cause that was sure to be lost if the case went to trial. Another finding was that 34 of the cases involved “mega-awards,” that is, payments exceeding $5 million. Only two of these mega-settlements were made after a jury verdict. The rest were settled at an earlier stage in the disputing process. The data also indicated the patients in both types of resolution had suffered very serious injuries such as paraplegia, quadriplegia, severe brain injuries, or death. Some of the deceased persons had survived for weeks in a vegetative state and others had left multiple heirs who were minors

Overall, jury decisions accounted for only 2.3% of paid Florida medical negligence claims. To some degree, however, they probably did cast a shadow over the settlement process. Lawyers tend to negotiate partly around the amount a jury might award if the case goes to trial. Yet, the shadow effect is not as direct as it might seem. Research on samples of insurers’ medical malpractice files indicate that insurers tend to settle cases primarily based on whether their own internal reviews by medical experts indicate the healthcare provider violated the standard of care. If they decide the standard has been violated an attempt will be made to settle. Negotiating postures involve not just prior jury awards but prior settlements in cases with similar injuries. Claims proceed to trial only when the plaintiff cannot be convinced that there was no violation of the standard, or if the plaintiff and insurer cannot agree on what constitutes a reasonable amount for the settlement. Contrary to much folklore among doctors about “frivolous cases,” no payments tend to be made for claims in which the defense lawyers and liability insurers decide there was no lapse in the standard of care

Juror Skepticism about Lawsuits

There is still an additional reason for plaintiffs winning only slightly one trial in four: juror attitudes. One of the most persistent claims against juries is that they are swayed in favor of the plaintiff by sympathies and hostilities toward doctors. Yet, research consistently contradicts this view. Vidmar found that jurors who served on medical malpractice trials in North Carolina described their attitudes along two main themes: too many people want to get something for nothing; and most doctors try to help people and should not be blamed for simple human misjudgment or a momentary lapse of concentration Even in some instances in which they decided for the patient, jurors expressed concern about the decision’s adverse effect on the doctor’s practice. This juror skepticism about personal injury claims extends beyond medical malpracticeconducted interviews with jurors in a large study of cases involving individuals with claims against businesses and health provider defendants. They found that jurors often penalized plaintiffs who did not meet high standards of credibility and behavior, including those who did not appear as injured as they claimed, those with preexisting medical conditions, and those who did not do enough to help themselves recover from their injuries. Thus, despite media accounts of jury irresponsibility, skepticism about getting something for nothing is rooted in American culture . Of course, this does not mean that in every case jurors hold such views. Sometimes trial evidence about a health provider’s malfeasance causes jurors to be angry even when they began the trial with open minds [34].

Jury Verdicts Compared to Medical Judgments

A 1998 report of the AMA voiced a common complaint about the ability of layperson jurors to decide medical negligence:

Juries are not optimally suited to decide the complicated issues of causation and duty of care. …With respect to the major elements of liability—duty of care and causation—the parties must present expert testimony, which the jurors cannot evaluate independently

If this claim is valid, an ideal study would be to compare the judgments of medical doctors to the verdicts rendered by juries. A study by Taragin et al. did just that. The study utilized data from the closed claim files of a medical liability insurer. The insurers had medical doctors closely examine the medical records in cases involving claims of medical negligence to determine if medical negligence had occurred. compared these judgments with verdicts rendered by juries if the case went to trial. The jury verdicts tended to be consistent with the medical judgments. Moreover, the study found that verdicts were not related to the severity of the injury suffered by the plaintiff, an indication that juries were not basing their judgment out of mere sympathy for a seriously injured patient. Farber and White also compared jury verdicts to hospital records bearing on negligence. Those authors found that the jury verdicts favored the hospital in all cases that the hospital had rated as not-negligent.

In a 2006 New England Journal of Medicine study by a group of researchers associated with the Harvard School of Public Health ], a team of medically trained personnel systematically examined the medical records and other data from over 1400 randomly chosen closed insurance claims in four different regions of the United States. Ratings were made as to whether the case involved a negligent error or no negligent medical error. The medical professionals concluded that, overall, 1/3 of the claims did not involve negligent medical error. Only one nonerror claim in four resulted in a payment. Fifteen percent of the claims (208 cases) were decided at trial. Plaintiffs prevailed only 21% of the time. Nonerror claims, as judged by these physician raters, were twice as likely as error claims to go to trial and 1/3 as likely to result in a plaintiff win. (Reasons for nonerror claims going to trial include the unreliability or bias in the physician ratings, decisions on the part of plaintiffs to go to trial after investing so much time and money in the discovery phase of the lawsuit and uncertainty in the litigation process, as well as a number of other factors

None of these studies found a perfect correlation between verdicts and medical personnel. On the other hand, rates of reliability between the medical professionals and assessments are not perfect either. In the New England Journal of Medicine study [29], for example, the medical professionals had high confidence in their judgments of negligent error in only 44% of the cases, with moderate confidence in an additional 30% and low confidence in the remaining 23%. The study of Tarragin et al. similarly found that doctors frequently disagreed about the presence or absence of negligence.

Judges Agree with Jury Verdicts

Some studies have asked trial judges to make independent assessments of who should have prevailed in civil cases over which they presidedThe judgments were made while the jury was still deliberating and therefore were not contaminated by knowledge of the outcome. The judge’s decision was then compared to the jury verdict in that case. Although the research did not specifically focus on malpractice juries (some malpractice cases and other complex cases were in the sample), the findings indicate that there was high agreement between the judge and the jury. Moreover, in instances when the judge would have decided differently than the jury, the judge usually indicated that nevertheless, the jury could reasonably have come to a different conclusion from the trial evidence. These findings are reviewed in detail in Vidmar and Hans’ American Juries: The Verdict

Jury Deliberations

The Arizona Jury Study Project involved the in-depth study of 50 Arizona civil juries, including the examination of questions jurors asked of experts and videotapes of their jury room deliberations Data from that research show jurors are actively involved in scrutinizing expert medical testimony. Jurors in Arizona are encouraged to write down questions that they want a witness to answer. Consider the following example regarding medical testimony about the results of an injury:

Why no medical records beyond the two years prior to the accident? What tests or determination besides subjective patient’s say-so determined [your diagnosis of] a migraine? What exact symptoms did he have regarding a migraine? Why no other tests to rule out other neurological problems? Is there a measurement for the amount of serotonin in his brain? What causes serotonin not to work properly? Is surgery a last resort? What is indomethacin? Can it cause problems if you have prostate problems?

In another accident case, a radiologist testified about a knee injury. Here are the written questions that jurors wanted the witness to answer:

Did you see the tears in the meniscus? Do you see degeneration in young people and what about people of the plaintiff’s age? Is a tear in the meniscus a loosening, lack, or gash in the cartilage? Can you tell the age of a tear due to an injury? Can you see healed tissue in an MRI? Do cartilage tears heal by themselves? Can healed tears appear younger [more recent] than they really are?

In still another negligence case, jury deliberations focused on the standard of care. After looking at various exhibits, the jurors’ deliberations focused on the standard of care.