Why Juries Turn Against Doctors

Million-dollar medical malpractice verdicts have doubled since 1996. They now make up 8% of all malpractice claims actually paid. This, at the same time that verdicts for the defense remain the norm and the number of lawsuit filings has actually fallen somewhat. Why? The quick – and partially correct – answer is that the cost of health care has skyrocketed. If a 3-year-old must breathe on a respirator for the rest of her life, which is expected to last at least 25 years, she will need a bigger award to cover the cost of that care.

But the truly big verdicts are due to something else. It's called a paradigm shift. Changes in the law, the tools available to plaintiffs' lawyers and the attitudes of potential jurors have altered the playing field for doctors being sued. And they don't seem to have caught on. Instead of changing how they approach litigation, doctors want to cap malpractice awards. But their effort is a mere bandage for a serious wound. It will not cure the medical malpractice “crisis.” Big verdicts will keep getting bigger until doctors face what is really going wrong in court.

Juries' Focus

Plaintiffs' lawyers have learned to present cases built on anger. No, juries don't give big verdicts out of sympathy, although doctors still think that's the reason. Instead, over the last 10 years, jury consultants have taught plaintiffs' lawyers to look for a reason to get mad. Lawyers build their cases around the question, “What is it about the medical care in this case that makes you angry?”

Consider just one award last year in rural South Carolina – $2.2 million in compensation, plus $15 million in punitives, in a state where the average payout is about $80,000. The doctor had mishandled a surgical procedure that alleviates chronic heartburn, a procedure that he was not fully qualified to perform. Here is how a juror explained the verdict: “We wanted to say to the medical profession that we don't want these kinds of people practicing medicine.” Lawyers have learned to put science first in explaining the standard of care. Trial lawyers demystify medicine by explaining the science simply, then adding the law. Doctors who fail to have a science-based answer to defend themselves look like they're hiding behind the law.

Expert Advice

It is easier to find medical explanations and experts these days because of the Internet. Standard-of-care information pours off the Web. A nurse consultant can find the best medical literature and the names of the best experts just by spending a day surfing online. The chief reference for medical standards and guidelines, the 2002 Healthcare Standards Directory, is available online, updated daily. And experts, once found, are more willing to testify for trial lawyers who have really done their homework, understand the medical issues at stake, and are not just looking for a talking head.

The much-discussed Daubert ruling has now come full circle. The key 1993 Supreme Court decision in Daubert v. Merrell Dow Pharmaceuticals told judges to act as “gatekeepers” to keep out marginal or unqualified experts. Doctors and their defense lawyers heralded this decision as a breakthrough – no more experts who just practice medicine out of the trunk of their car. But plaintiffs' lawyers have since learned to use Daubert to the patient's advantage.

Because the judge is required to rule on the quality of the experts, those who do pass muster are essentially accredited in the judge's eyes. That can lead to a more positive, less skeptical attitude from the bench. And jurors pick up on the judge's “signal” that an expert is credible.

Trial lawyers also have started working together in so-called “bad baby” cases. In 1994, plaintiffs' lawyers formed the Birth Trauma Litigation Group, affiliated with the Association of Trial Lawyers of America. The group's newsletter and seminars have catapulted lawyers up the learning curve with science-based arguments designed to overcome new defense theories.

Consider Erb's Palsy, a birth injury that damages nerves controlling the arms and hands, which is a fixture in the group's discussions. Members know about that damning Food and Drug Administration Public Health Advisory of May 21, 1998, regarding vacuum extractors. Too many doctors do not. Group members send “chain” letters to each other asking for depositions of “notable” defense experts. Some very big-name defense experts have been, well, inconsistent in their testimony.

Unsympathetic Doctors and Juror Anger

Arrogance equals big verdicts. Doctors' arrogance coupled with the “stuff happens” defense makes jurors angry. Research into the causes of malpractice suits has turned up not-so-startling evidence that physicians' behavior leads to malpractice claims. And behavior is based on attitudes; 44% of doctors say they are utterly exhausted, with 41% admitting they are so depressed that they have no hope that things will improve. Depressed, exhausted doctors can easily sound uncaring, especially during the stress of trial. They also may embrace the “stuff happens” defense. But jurors do not. They do not understand why a doctor cannot give a clear explanation of exactly how a patient was injured. Jurors do not like it when they sense that a highly trained professional is shrugging his or her shoulders and saying, “Things go wrong sometimes.”

Technology and television have changed how the public views doctors. Trial lawyers have learned that the best way to make doctors tell the truth – or to make them squirm – is to put them in front of a camera. All serious cases now use videotaped depositions.

Doctors have lost the moral high ground in their effort to limit verdicts. Just when physicians were lobbying the hardest for Congress to pass a $250,000 cap on noneconomic damages, the tragic death of Jesica Santillan, the 17-year-old girl who received an incompatible heart-lung transplant at Duke University Hospital in February, highlighted the careless underside of medicine. Add to this the news reports on the number of people who die from hospital- or doctor-caused complications, and the follow-up reports that nothing was being done to reduce the number of those deaths. Not good when potential jurors already fear that doctors are more interested in making money than saving lives.

Of course, it does not help that when doctors themselves are injured, they demand the same multimillion-dollar damages. An Indiana neurosurgeon who slipped and fell in a puddle of water in a hospital pantry in 1998 sued the hospital. The jury awarded him almost $17 million for the injury to his arm. Was the award justified? Perhaps, but surely no more so than many other big verdicts.

Conclusion

These are some of the key reasons why awards have risen in malpractice cases. And what of the future? Politicians will keep arguing about caps. But the cries of outrage over repetitive malpractice “crises” – 1975, 1988, 1994, and today – are beginning to ring hollow. Look to courts to ban confidential settlements in all kinds of cases, including malpractice. And expect judges to find too much “reform” unconstitutional.

Million-dollar medical malpractice verdicts have doubled since 1996. They now make up 8% of all malpractice claims actually paid. This, at the same time that verdicts for the defense remain the norm and the number of lawsuit filings has actually fallen somewhat. Why? The quick – and partially correct – answer is that the cost of health care has skyrocketed. If a 3-year-old must breathe on a respirator for the rest of her life, which is expected to last at least 25 years, she will need a bigger award to cover the cost of that care.

But the truly big verdicts are due to something else. It's called a paradigm shift. Changes in the law, the tools available to plaintiffs' lawyers and the attitudes of potential jurors have altered the playing field for doctors being sued. And they don't seem to have caught on. Instead of changing how they approach litigation, doctors want to cap malpractice awards. But their effort is a mere bandage for a serious wound. It will not cure the medical malpractice “crisis.” Big verdicts will keep getting bigger until doctors face what is really going wrong in court.

Juries' Focus

Plaintiffs' lawyers have learned to present cases built on anger. No, juries don't give big verdicts out of sympathy, although doctors still think that's the reason. Instead, over the last 10 years, jury consultants have taught plaintiffs' lawyers to look for a reason to get mad. Lawyers build their cases around the question, “What is it about the medical care in this case that makes you angry?”

Consider just one award last year in rural South Carolina – $2.2 million in compensation, plus $15 million in punitives, in a state where the average payout is about $80,000. The doctor had mishandled a surgical procedure that alleviates chronic heartburn, a procedure that he was not fully qualified to perform. Here is how a juror explained the verdict: “We wanted to say to the medical profession that we don't want these kinds of people practicing medicine.” Lawyers have learned to put science first in explaining the standard of care. Trial lawyers demystify medicine by explaining the science simply, then adding the law. Doctors who fail to have a science-based answer to defend themselves look like they're hiding behind the law.

Expert Advice

It is easier to find medical explanations and experts these days because of the Internet. Standard-of-care information pours off the Web. A nurse consultant can find the best medical literature and the names of the best experts just by spending a day surfing online. The chief reference for medical standards and guidelines, the 2002 Healthcare Standards Directory, is available online, updated daily. And experts, once found, are more willing to testify for trial lawyers who have really done their homework, understand the medical issues at stake, and are not just looking for a talking head.

The much-discussed Daubert ruling has now come full circle. The key 1993 Supreme Court decision in Daubert v. Merrell Dow Pharmaceuticals told judges to act as “gatekeepers” to keep out marginal or unqualified experts. Doctors and their defense lawyers heralded this decision as a breakthrough – no more experts who just practice medicine out of the trunk of their car. But plaintiffs' lawyers have since learned to use Daubert to the patient's advantage.

Because the judge is required to rule on the quality of the experts, those who do pass muster are essentially accredited in the judge's eyes. That can lead to a more positive, less skeptical attitude from the bench. And jurors pick up on the judge's “signal” that an expert is credible.

Trial lawyers also have started working together in so-called “bad baby” cases. In 1994, plaintiffs' lawyers formed the Birth Trauma Litigation Group, affiliated with the Association of Trial Lawyers of America. The group's newsletter and seminars have catapulted lawyers up the learning curve with science-based arguments designed to overcome new defense theories.

Consider Erb's Palsy, a birth injury that damages nerves controlling the arms and hands, which is a fixture in the group's discussions. Members know about that damning Food and Drug Administration Public Health Advisory of May 21, 1998, regarding vacuum extractors. Too many doctors do not. Group members send “chain” letters to each other asking for depositions of “notable” defense experts. Some very big-name defense experts have been, well, inconsistent in their testimony.

Unsympathetic Doctors and Juror Anger

Arrogance equals big verdicts. Doctors' arrogance coupled with the “stuff happens” defense makes jurors angry. Research into the causes of malpractice suits has turned up not-so-startling evidence that physicians' behavior leads to malpractice claims. And behavior is based on attitudes; 44% of doctors say they are utterly exhausted, with 41% admitting they are so depressed that they have no hope that things will improve. Depressed, exhausted doctors can easily sound uncaring, especially during the stress of trial. They also may embrace the “stuff happens” defense. But jurors do not. They do not understand why a doctor cannot give a clear explanation of exactly how a patient was injured. Jurors do not like it when they sense that a highly trained professional is shrugging his or her shoulders and saying, “Things go wrong sometimes.”

Technology and television have changed how the public views doctors. Trial lawyers have learned that the best way to make doctors tell the truth – or to make them squirm – is to put them in front of a camera. All serious cases now use videotaped depositions.

Doctors have lost the moral high ground in their effort to limit verdicts. Just when physicians were lobbying the hardest for Congress to pass a $250,000 cap on noneconomic damages, the tragic death of Jesica Santillan, the 17-year-old girl who received an incompatible heart-lung transplant at Duke University Hospital in February, highlighted the careless underside of medicine. Add to this the news reports on the number of people who die from hospital- or doctor-caused complications, and the follow-up reports that nothing was being done to reduce the number of those deaths. Not good when potential jurors already fear that doctors are more interested in making money than saving lives.

Of course, it does not help that when doctors themselves are injured, they demand the same multimillion-dollar damages. An Indiana neurosurgeon who slipped and fell in a puddle of water in a hospital pantry in 1998 sued the hospital. The jury awarded him almost $17 million for the injury to his arm. Was the award justified? Perhaps, but surely no more so than many other big verdicts.

Conclusion

These are some of the key reasons why awards have risen in malpractice cases. And what of the future? Politicians will keep arguing about caps. But the cries of outrage over repetitive malpractice “crises” – 1975, 1988, 1994, and today – are beginning to ring hollow. Look to courts to ban confidential settlements in all kinds of cases, including malpractice. And expect judges to find too much “reform” unconstitutional.