Medical Malpractice and the American Jury: Confronting the Myths about Jury Incompetence, Deep Pockets, and Outrageous Damage Awards

by Neil Vidmar

Overview

In this landmark book, Neil Vidmar looks beyond the common perceptions of medical malpractice litigation and finds a system that is fair, impartial, and intelligent. Firmly grounded in a wealth of empirical data, the author presents a fresh look at a civil jury system that has been maligned as out-of-touch, capricious, and disposed to awarding exorbitant, unjustified amounts to plaintiffs whenever they have the opportunity. In an era when tort reform is high on the congressional agenda, Medical Malpractice and the American Jury is almost alone in voicing reason and fact.
Written in a thoroughly inviting, jargon-free style, Medical Malpractice and the American Jury places those cases that go to trial in the broader context of litigation, noting that only about ten percent of malpractice cases ever result in trials. Of those that do go to trial, the author notes, more than two out of three cases are decided in the doctor's favor—repudiating the view that jurors are inherently biased against doctors and are motivated more by sympathy for the plaintiff than by the facts of the case.
Neil Vidmar comprehensively addresses all the claims that have been leveled against the performance of malpractice juries. For example, he compares actual jury decisions on negligence with neutral physicians' ratings of whether negligence occurred in the medical treatment and finds a remarkable consistency—repudiating the view that jurors are unable to understand experts or uncritically defer to their opinion.
"Medical Malpractice and the American Jury is quite simply the most compelling, comprehensive examination of the American jury system yet written. It brings reason and fact to the debate in a way that puts the lie to the many myths surrounding medical negligence cases. For anyone genuinely interested in just solutions, this book should be required reading. To act in ignorance of its findings invites disaster." —Trial
"For anyone really interested in the evidence about the daily grind of the courthouse mill, Neil Vidmar's Medical Malpractice and the American Jury is a good place to start." —Washington Post Book World
Neil Vidmar is Professor of Social Science and Law, Duke Law School, and Professor of Psychology, Duke University.

Product Details

ISBN-13:	9780472084791
Publisher:	University of Michigan Press
Publication date:	07/15/1997
Edition description:	New Edition
Pages:	336
Product dimensions:	6.00(w) x 9.00(h) x 1.10(d)

About the Author

Neil Vidmar is Professor of Social Science and Law, Duke Law School, and Professor of Psychology, Duke University.

Read an Excerpt

CHAPTER ONE

Are Medical Malpractice Juries Engaged in Malpractice?

For more than two decades the jury has played a central role in an ongoing debate about the viability and fairness of the American tort system. Critics of that system, and there are many, argue that the jury is the primary flaw in the legal procedures through which disputes over liability and compensation for injuries alleged to be caused by the negligence of another are resolved. For them, juries are the apotheosis of irrationality, incompetence, and injustice. The critics allege not only that jury verdicts are often unfair in individual cases but, equally important, that the consequences of the verdicts redound throughout the whole legal system and beyond. Although only about 10 percent of lawsuits reach the stage of jury trial and about 40 percent are dropped without payment to the plaintiff, settlements in the remaining cases are argued in the shadow of what the jury will do if the case goes to trial. High damage awards in jury trials, the logic goes, increase the amount of settlements in other cases by setting the standards for compensation. Moreover, it is argued, overgenerous awards rendered at trial encourage even more litigation by plaintiffs and their attorneys as they seek a windfall in the "jury lottery." The costs of the awards and settlements are passed on to all of us through higher costs for products, the discouragement of innovation that could produce new and better products if not for the risk of lawsuits, the driving of service providers out of business, and increased insurance liability premiums.

While the criticisms of civil juries are alsoextended to products liability cases and to non-tort cases such as antitrust and business contract disputes, to take a few examples, it seems that no discussion is complete without particular reference to medical malpractice. Indeed, malpractice verdicts are identified in many quarters as the central villain in the illnesses of the American system of health care. Unjustified awards to plaintiffs, it is asserted, occur in such numbers that doctors are fleeing from high-risk specialties like obstetrics. Unfair jury verdicts produce fears of lawsuits that create mistrust that, in turn, destroy doctors' relations with their patients. To avoid lawsuits based on claims that they did not do everything possible, doctors order unnecessary and expensive medical tests. Finally, the unjustified awards increase the rates of professional liability insurance that, in turn, raise the overall costs of medical treatment that are passed on to the patients. But I will let some of these critics speak in their own words about jury performance.

In a submission to a federal government study, the North Carolina Plastic Surgery Society said:

The jury system seems to show a desire for punitive [action] and retribution above and beyond the degree of injury—"let's get the rick doctor."

The North Carolina Hospital Association claimed:

Often awards have little relationship to the seriousness of injury. This is no way to predict how a jury will rule on a particular set of facts.... Often awards bear no relationship to economic losses.... to day juries often make awards regardless of the "fault" of anyone—out of sympathy for an injured person. More and more the public attitude is that insurance will compensate the injured party and the defendant will not sustain any loss ...; [t]oo often juries appear to award on [the] bases of emotion as opposed to facts and/or realistic evaluation of case circumstances.

In 1988 a task force of the AMA declared:

In the medical liability context, a source of at least some of the problem for physicians and other health care providers ... appears to many to be the jury.... [Problems with the jury] 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.

Physicians do not stand alone. For instance, James Griffith, a lawyer specializing in the defense of medical malpractice cases, asserted, "There's no limit on what jurors can award for pain and suffering, so too often they act like Santa Claus, handing out millions of dollars in cases involving comparatively minor injuries." In the mid-1980s the insurance brokerage firm Johnson and Higgins took out advertisements in the WALL STREET JOURNAL declaring that there was a litigation crisis in which juries "tripled their awards in just one decade" and that the average medical malpractice award in 1984 was $950,000. In 1986 a report on tort policy produced by the U.S. Department of Justice asserted that between 1975 and 1985 the average medical malpractice jury award had increased from $220,108 to $1,017,716.

Popular writer Peter Huber's book on the tort system, Liability: The Legal Revolution and Its Consequences, is sprinkled with anecdotes about malpractice cases. He asserts that, "[i]nflation-adjusted awards in medical malpractice cases have doubled about every seven years" and concurs with the doctors and liability insurers when he says of trial outcomes in the 1970s and 1980s,

But judges and juries were, for the most part, committed to running a generous sort of charity. If the new tort system cannot find a careless defendant after an accident, it will often settle for a merely wealthy one.

Huber then offers an explanation:

The only human reaction to the individual tragedy viewed close up, is unbounded generosity, which any large corporation or insurer can surely afford to underwrite.

Similar sentiments are expressed by Huber's colleague, Walter Olson, in The Litigation Explosion. Time, Newsweek, The Wall Street Journal, and Reader's Digest, among other widely read publications, have repeated and popularized these claims.

In 1988 President Bush's administration proposed placing a cap on pain and suffering awards in malpractice cases, presumably on the assumption that this component of damages is one of the causes of "runaway" verdicts. Senator Pete Dominici and C. Everett Koop, the former U.S. Surgeon General, cowrote an article in the New York Times that made similar charges.

Serious scholars voice these views as well. In his widely read and influential book Medical Malpractice on Trial, Professor Paul Weiler writes about "spiraling jury verdicts" and explains that

juries have become accustomed to huge award requests and they are more willing to reach into the deep pocket of malpractice insurers to compensate the victims generously—more willing than when they encounter the victims of automobile accidents for in these cases the insurance premiums at risk are paid directly by the jurors themselves.

Elsewhere in the book he comments that "the most troublesome feature of large tort verdicts is the amount of damages awarded for pain and suffering, not for direct medical costs." He also questions the ability of juries composed of laypersons to competently judge the highly technical issues being on causation and liability in medical negligence.

Complaints about malpractice juries are not new. Medical malpractice lawsuits were known in England, for example, where Sir William Blackstone mentioned them in his famous Commentaries on the law of England, published in 1803. Professor Kenneth Allen DeVille's book Medical Malpractice in Nineteenth-Century America documents accusations of malpractice in colonial times, a substantial number of cases in the early 1800s, and many more after midcentury. DeVille's scholarship also reveals complaints about the jury system that are very similar to those made today. An 1847 editorial in a medical journal, for example, referred to the "glorious uncertainty of legal justice and of medical testimony," and "bewildered" juries. In 1854 an outraged New York doctor complained that "[a] single dissenting voice among the surgeons on the stand is enough to turn the scale in favor of the plaintiff, toward whom the sympathies of the jury invariably run." A medical editorial in 1865 stated that the "sympathy of a jury of citizens is not generally with the doctor, but rather on the side of the poor, ill-advised, unfortunate victim of incurable injury."

A Summuary of Charges against Juries

If the claims of such a variety of critics have validity then we should be forced to conclude that medical malpractice juries themselves are rather consistently engaged in malpractice. The critics offer a list of overlapping indictments that, placed in summary form, are as follows.

* Over recent decades juries have increasingly favored plaintiffs over physician and hospital defendants.
* Jury damage awards are increasing at an alarming rate and in amounts that cannot be justified.
* Juries are biased against doctors and hospitals.
* Juries often give awards to plaintiffs out of sympathy for their plight, even if there is no evidence of negligence.
* There is a "deep pockets" effect whereby, as contrasted to negligent automobile drivers, jurors give larger awards against doctors because they assume that doctors can more afford to pay.
* Jury largess mainly revolves around the "pain and suffering" component of damage awards.
* Punitive damages are also a problem because they are given frequently and without warrant.
* Juries are not competent to decide the complex technical issues in medical negligence cases.
* Juries are often confused by the testimony of experts, particularly "hired gun" experts, and they evaluate the expert evidence on legally irrelevant dimensions.
* Juries are unreliable and capricious in their decisions about both liability and damages.
* Doctors can make "better" decisions than juries on the issue of negligence.
* Legal professionals can make "better" decisions than juries on the issue of damages.

These charges raise serious questions not only about how malpractice cases are resolved but about the whole institution of the civil jury. We should not expect such misbehavior to be confined exclusively to the domain of medical negligence. Even though the right to jury trial in many civil matters in guaranteed by the Seventh Amendment to the U.S. Constitution and to a great extent in the constitutions of the 50 states, perhaps it is time to consider serious curbs on juries or even replacing the jury with some alternative method of deciding lawsuits—but only if these extreme claims are true.

Let us not rush to such hasty conclusions. We need to examine the evidence supporting these claims and any contrary evidence. The jury has served a central role in the civil justice system for more than 200 years—it was in use in colonial America long before the framing of the Constitution. Contemporary studies of public opinion show high support for it. Although some members of the legal profession have been critical of it—Judge Jerome Frank described civil juries as applying law they don't understand to facts they can't get straight—recent surveys of judges show that the vast majority consider juries to be competent and conscientious.

Thus, before we even consider abandoning the jury system for medical malpractice disputes we need to evaluate how it performs. We also need to consider whether any weaknesses it has might be corrected by modifying the way it is asked to perform. This book's organizing theme is the extent to which malpractice juries deviate from legal norms and, if so, for what reasons. To undertake this analysis I will examine jury performance at an absolute level and in relation to standards of how doctors and judges might perform in its place. The analyses separate the issues of deciding liability and deciding damage awards. While my focus is on malpractice juries this study has broader implications for understanding juries in other contexts and about the role of the jury in our system of civil justice. These latter themes will be addressed in the final chapter.

Data Sources

The research underlying this book is empirically based—by which I mean that it places heavy emphasis on systematically collected data rather than on anecdotes. Nevertheless, case studies are used in abundance to develop conceptual points and give flesh to the hard statistics. For my analyses I draw upon an eclectic set of sources that include the following.

* A database of court records consisting of approximately 95 percent of the malpractice cases filed in North Carolina state and federal courts between the beginning of July 1984 and the end of June 1987: a sample of 895 cases
* A second database of court records for state malpractice cases filed in 14 North Carolina counties beginning July 1987 and terminating at the end of December 1989: a sample of 326 cases
* A sample of 154 "closed claim" files obtained from three medical malpractice liability insurers in North Carolina covering roughly the same period as the court file data
* Case studies of malpractice trials in North Carolina, involving observations of the trials and interviews with jurors who rendered the verdicts in those trials
* Experimental studies involving persons awaiting jury duty and senior lawyers, including former judges, in various jurisdictions in North Carolina
* Personal interviews and questionnaire responses from plaintiff and defense attorneys involved in malpractice litigation. There are also interviews and conversations with insurance company personnel bearing on their roles in the litigation process and on specific cases that formed part of our sample.
* Studies by other researches of malpractice juries in other jurisdictions in the United States

An Overview

In the remainder of this first part of the book I review the sources of evidence upon which the assertions about jury misbehavior are apparently based and offer a detailed critique of some of this evidence (chap. 2). I then profile medical malpractice jury verdicts in North Carolina (chap. 3) and compare North Carolina statistics with statistics from other states and federal courts (chap. 4).

Part 2 develops my thesis that unknown, but probably substantial, portion of malpractice jury outcomes can be ascribed to the types of cases selected for trial and that the understanding of jury behavior is incomplete without understanding of this aspect of the litigation process. Chapter 5 presents a profile of the cases that went to trial, and chapter 6 uses a number of case studies to demonstrate the dynamics that propel cases to trial. Chapter 7 puts the case studies into context, and chapter 8 develops the theme that trial cases are often weak on the issue of defendant liability.

Part 3 is devoted to the exploration of how juries decide liability. Chapter 9 is a reprinted article by Steve Cohen, an alternate juror in a New YOrk malpractice trial. Cohen's article gives a unique insight into the minds of the jurors that decided one very contentious malpractice case. It is followed by a brief chapter that discusses the trial judge's review of the reasonableness of the New York jury's decisions. Chapter 11 describes what malpractice juries are asked to do and reviews the claims about jury incompetence and bias with regard to liability. Chapter 12 presents studies of cases that, I aruge, contradict the claim that all malpractice trials are technically complex. Chapter 13 presents case studies in which the issues were indeed complex, Chapter 14 extends these case studies describing studies that help us compare jury performance against the decisions of doctors and legal professionals. Chapter 15 closes this part of the book with a summary perspective on liability decisions.

Part 4 turns to the issue of damage awards. Chapter 16 provides an overview of the jury's taks. Chapter 17 describes and analyzes the claim that juries favor plaintiffs who sue "deep pockets" defendants, such as doctors. It is frequently said that when jurors perceive that a defendant is rich (hence has "deep pockets") and can afford the loss they are inclined to give big awards regardless of negligence. Chapter 18 presents two experiments with jurors that put the deep pockets hypothesis to empirical test. Chapter 19 examines the claim that judges rather than juries are more competent to decide the amount of awards for pain and suffering and describes experiments bearing on this hypothesis. Chapter 20 presents some case studies that give more insight into how jurors deliberate and arrive at damage awards. Chapter 21 reports additional data bearing on punitive damages and on the correspondence of damage awards with actual economic losses. Chapter 22 presents a summary perspective on damages.

Part 5 brings the book to a conclusion. It first addresses the question of why the widespread beliefs about jury incompetence and misbehavior are so discrepant from the empirical portrait painted in this book. It then attempts to assess the meaning of the findings in the context of the broader debate tort reform.

Editorial Reviews

Unfortunately, much of the empirical work undertaken by academics that addresses issues of critical importance in the debate over tort reform has in effect been made available only to other academics. The publication of research findings in academic journals is, of course, appropriate and necessary to allow for peer review and to provide the academic community the opportunity for critical comment. However, this vehicle does not appear to convey information efficiently into the public policy arena and an important voice is too often lost. Neil Vidmar's recent book brings his fine work on jury behavior and medical malpractice litigation to a broader audience. Vidmar weaves together jury verdict and closed claim data, case studies, interviews with lawyers and liability insurers and the results of simulation experiments to produce a rich tapestry that depicts an intricate portrait of the workings of the medical malpractice component of our civil justice system. The first four chapters of this volume are clustered under the heading, "The Debate and the Evidence." Chapter 1, entitled "Are Medical Malpractice Juries Engaged in Malpractice?" briefly sets out the negative claims about medical malpractice juries (and civil juries in general): pro-plaintiff sympathies, lack of competence in dealing with complex issues and the testimony of expert witnesses, and general capriciousness and unpredictability. This chapter also defines the data sources that will be used in the discussion and charts the course for the remainder of the book. Chapter 2 presents a brief survey and methodological critique of the grounds upon which claims about jury behavior in medical negligence cases are made, characterized as anecdotal reference, unrepresentative verdict data and representative verdict data. Anecdotes reveal little about the overall system and are selected for their evocative power; unrepresentative verdict data present a skewed portrait while unfortunately emitting a scent of credibility; and representative verdict data describe the tip of the iceberg, but provide no information about the case selection process or juror motives, attitudes or perceptions. Chapter 3 describes jury verdict and settlement statistics from Vidmar's North Carolina database. Five abbreviated case studies are integrated into this discussion to both highlight the weaknesses of relying only on jury verdicts to inform the characterization of the civil justice system and also to provide specific insights into the description of medical malpractice jury behavior. These case studies suggest that the plaintiffs who lose at trial might not walk away empty handed because of settlement before trial with parties no longer formally joined in the lawsuit. Also, while some plaintiff "wins" may not cover expenses, let alone expectations, other potentially high awards disappear from the visible array of verdicts because they settle for high amounts. Chapter 4 contains a review of an array of other empirical work to provide a backdrop against which the malpractice cases and verdict patterns in Vidmar's North Carolina database may be examined to provide an Page 38 follows: assurance that they are "not atypical." The next set of chapters is grouped under the heading "Case Selection and Its Importance in Understanding Jury Outcomes." Chapter 5, written with Laura Donnelly, explores potential differences between cases that go to trial, those that settle and those that are concluded without trial and without payment. Severity and the nature of the injury, the initial number of defendants and the degree of specialization of the plaintiff's attorneys appear to be important factors. In Chapter 6 another set of case studies is used to describe the complexity attendant in the preparation and presentation of a medical malpractice case. Four case studies document the substantial uncertainty that can afflict both sides at various stages in the process and the breadth of the disparity in their estimates of liability and the value of the case. Chapter 7 provides insight into factors that might influence the settlement decision such as the risk averseness of plaintiffs and the effect of liability insurer behavior. In the summary of this chapter cluster, Vidmar concludes that cases that proceed to trial tend to be those in which evidence of defendant liability is weak, which raises questions as to why plaintiff's lawyers take them to trial. He posits that the imbalance of information between the parties, with plaintiff's lawyers being handicapped particularly during the earlier stages of the "litigation" process, may play an important role in the pursuit of weak cases to trial. Vidmar appropriately puts these notions forth as hypotheses; there is much that we do not yet know in any systematic fashion about the selection of cases for trial. Seven chapters are assembled under the heading "Liability." The first chapter in this section is authored by a corporate executive who sat as an alternative juror on a New York malpractice case that produced one of the highest medical malpractice verdicts in the country. It provides a useful insights into the jury process from the point of view of an articulate and thoughtful observer who describes his participation as a "soul searching experience." This chapter is followed by a rather telling postscript -- a discussion of the judicial review process of that case and its results. The third chapter in this series provides a brief overview of the complexities with which juries must deal in resolving the issue of liability. The next two chapters present case studies: the first describing a set of three cases that suggest that medical malpractice cases are not all confoundingly intricate and that juries can render informed judgements and the second uses three more complicated cases to balance the picture being presented. Chapter 14 discusses alternatives to juries -- panels of neutral doctors -- and through discussions of other empirical work, finds that assessments of juries as to negligence are not out of line with those of physicians who may as a group "err" in favor of their colleagues. Also highlighted is evidence that, contrary to "popular" belief, severity of injury does not provoke untoward sympathy among jurors; expert witness testimony is not weighed inappropriately; and juries do not tend to favor patients over doctors. Indeed, the final chapter in this segment raises the hypothesis that a pro-defendant bias may exist given the conformance with physician liability assessment patterns. Page 39 follows: The final cluster is entitled "Damages" and leads with a short chapter containing a brief definitional discussion of economic, non-economic and punitive damages and an overview of jury instructions relating to the determination of damage awards. The next two chapters focus on the alleged penchant of juries to seek out and pick the deep pockets of certain types of defendants. Jury verdict data exhibit higher awards in medical malpractice and products liability cases, but can only begin through investigations of the severity of injury alleged, to answer questions regarding the size of these awards. Chapters 18 and 19 present the results of several simulation experiments conducted by the author and his colleagues designed to test for variations between medical malpractice and auto negligence cases and individual versus deep pocket defendants. No significant differences were found among these scenarios, calling into question jurors' alleged collective desire to reward plaintiffs by plucking dollars from the nearest deep pocket. Addressing the issue of the special expertise of legal professionals (and the lack of competence on the part of jurors) to assess pain and suffering awards, this technique was used to compare the ability of jurors and lawyers to arrive at an amount for pain and suffering. Again, no significant variations were found between the two groups. Chapter 20 revisits case studies described earlier to compare comments of jurors who served on these cases with those of the individuals who participated in the simulations. Subsequent chapters call into question whether it is inappropriate to find large awards in medical malpractice cases. The findings from the work of Professor Frank Sloan et al. is used to assert that economic damages in medical malpractice cases can be substantial, laying the underpinnings for substantial awards. In other words, it is not the pain and suffering awards that inflate malpractice verdicts. Referring to verdict data from work done by others, Vidmar reminds that punitive or exemplary damages occur rarely and that when they do the type of harm or behavior statutorily requisite to these awards is usually present. Vidmar uses the forum of a book-length manuscript to bring to a large audience not only his own work in the medical malpractice arena, but a generous review of the labors of other scholars. He uses his own data and research, supplemented by that of these others, to counter the popular allegations about juror behavior in medical malpractice. While one might quibble with some of the hypotheses raised throughout the book, it must be noted that he has taken care not to stretch his findings beyond sound empirical underpinnings and to meticulously distinguish between finding and hypothesis. In the book's final chapter, Vidmar concludes with the caution that policy making based on inaccurate assumptions and faulty identification and characterization of problems with the system produces nonsolutions and perhaps fatal harm. The civil justice system may benefit from some reforms, but not those predicated on mischaracterizations. There is much yet to be learned and Vidmar sounds the rallying cry for more research, particularly in areas like products liability, and for a close monitoring of the changes that have already been put in place.

Joanne Martin