Are Juries Fair to Physicians?

Medical malpractice cases are high-stakes events. Although defendants continue to prevail in two-thirds of trials, when the plaintiff wins, the median amount of the verdict is $1.2 million; and developing information indicates that that figure is rising at an alarming rate. See, e.g., Jury Verdict Research, LPR Publications, Horsham, PA, 2003, 2005. According to the National Practitioner Data Bank, there were 17,298 medical malpractice payments made in 2005, either in settlement or after verdict, with a median payment of $174,569 for physicians; obstetrical case payments had a median of $300,000. National Practitioner Data Bank 2005 Annual Report, U.S. Department of Health and Human Services, Heath Resources and Services Administration, 5600 Fishers Lane, Suite 84-55, Rockville, MD 20857, pg 23. Given how large the awards are when there is a verdict against a physician, many in the medical profession and their defense teams have come to believe that juries are random and unfair. The conventional wisdom seems to be that judge-made decisions are a safer bet for med-mal defendants. Is this true?

Comparing Medical Malpractice Verdicts and Other Verdicts

If an evenly split number of cases go to trial, plaintiffs should win approximately 50% of the time. That is true in personal injury cases in general. Study after study has found that defendants win approximately half of their trials, and that situation has remained remarkably stable since the 1960s. Harry Klaven Jr., The Dignity of the Civil Jury, 50 Va. L. Rev. 1055, 1072 (1964). As recently as 2005, researchers were making the same findings. Shari Seidman Diamond and Mary R Rose, Real Juries, I ANN. Rev. Law & Soc. Sci. 255, 262 (2005). So, every year, overall, plaintiffs win approximately half of the cases that go to verdict.

Now contrast that with the win rate in medical malpractice cases ' the win rate is consistently higher for medical malpractice defendants than it is for any other type of case. The Federal Bureau of Justice Statistics, which has tracked win rates for medical malpractice defendants in the largest 75 counties in the country since 1992, shows that the win rate for medical malpractice plaintiffs is actually dropping: from 30% to 27%. Carol J. DeFrances et. al., Bureau of Justice Statistics, Jury Cases and Verdicts in Large Counties, 1995, 1996, 1999. If we remove the uncontested cases ' where liability is admitted and the only question is damages ' the statistics are even more favorable to defendants; the plaintiffs won in the contested cases only 11% of the time. Thomas, B. Metzloff, Resolving Malpractice Disputes: Imaging the Jury's Shadow”, Law & Contemp. Probs., Winter 1991; Patricia M. Danzon, Medical Malpractice: Theory, Evidence, and Public Policy 24, (1985).

Does 'Quality of Case' Affect the Difference in Med-Mal Case Outcomes?

If physicians are winning at twice the rate of other personal injury defendants, is it because a different quality of case goes to trial in the medical malpractice arena? Several studies have attempted to answer the question, and the answer is consistently “yes.” Historically, cases that were weak for the plaintiff went to trial while weak defense cases were settled. That may be changing, but in most studies, it is still clear that good medicine cases outweigh bad medicine cases in the courtroom. If that is the case, defendants should be winning the majority of their trials, and indeed they are.

Judges vs. Juries

Given the suspicion that so many malpractice defendants have for juries, would they be better off if they were judged by judges? It may come as a surprise to many that the answer to that question is, “no.”

Judges agree with the jury about 78% of the time; but when they disagree in non-medical malpractice cases, they are about evenly split between plaintiff and defendant. Harry Klaven, Jr. and Hans Zeisel, The American Jury, 1966. That is not true for medical malpractice cases; in medical malpractice cases plaintiffs win twice as often in front of judges as they do in front of juries. Thomas H. Cohen, Bureau of Justice Statistics, Tort Trials and Verdicts in Large Counties, 2001 at 4 tbl. 3; available at www.ojp.usdoj.gov/bjs/pub/pdf/ttvlc01.pdf; Kevin Clermont and Theodore Eisenberg, Trial by Jury or Judge: Transcending Empiricism, 77 Cornell L. Rev. 1124, 1992. This is striking since in other types of cases the agreement between judges and juries is similar. Judges generally have a high view of juries, and studies consistently show that. The fact that juries are kinder to physicians than judges are is a further indication that lay people should not only not be avoided by the defense, but perhaps should be appreciated more by the medical community.

Another common refrain among physicians is, “I'd rather be judged by a jury of my peers.” Medical providers generally worry that laypersons will lack the education and expertise necessary to understand what they did, what went wrong, and why. In study after study however, when asked if a medical provider had committed a medical mistake, medical reviewers found against physicians more often than juries did. In one large study, where physician reviewers found the medicine provided to a patient to be “indefensible,” juries sided with that same medical care provider 42% of the time. Taragin et. al., supra 9. Virtually every study that has asked the same question has found the same thing: Physician reviewers find malpractice more often than juries do. “Juries are several times more likely to depart from the judgment of the reviewers when doing so will exonerate the defendant than they are to disagree when doing so will lead to liability ' The repeated finding that juries rule in favor of defendant physicians more often than physician reviewers do is remarkable given the documented reluctance of physicians to label another physician's care as negligent.” Peters, supra 11 at 1476, see also: Paul C. Weiler et. al., A Measure of Malpractice, 1993.

The evidence thus shows that, despite what physicians and their defense teams believe, juries are not biased in favor of injured plaintiffs. This is true for several reasons. First, the public is generally concerned about excessive litigation. Indeed, comments such as “these people are just trying to get rich quick” are typical. This is even truer in medical malpractice cases than in other personal injury cases. One-third of people in one medical malpractice study said that plaintiffs are looking for easy money. Ellen L. Leggett, Jury Research Institute, Identifying Juror Bias and Their Impact on Cases, 1999. Jurors are particularly suspicious of those who are asking for compensation in situations similar to ones they have experienced themselves. If they did not take any action to seek compensation, why should this plaintiff feel entitled to money? After all, we all know bad outcomes are possible in all human endeavors, even in the medical care context.

Jurors also understand that medical malpractice cases began with a patient going to a medical provider with a problem; these doctors and nurses were only trying to help the patient get better. Sure, the general public usually holds physicians and other medical care givers to high standards when it comes to the quality of their decisions, but there is also a widely held belief that physicians are altruistic and working for the good of others, instead of for their own self-interests.

People tend to trust their doctors and they feel safer having gone to see them, even when there has been a negative outcome. Because of their own need to feel safe, jurors want to believe that all (or, at least, most) physicians make good decisions for their patients, and for the right reasons. In other words, they are doing the best they can, with the best of intentions.

The motivation of the defendant thus becomes a crucial decision point for juries. This is true because, by the time a case comes to trial, a negative outcome has already occurred for the patient. Typically, this works against the defendant, as we have seen in other types of lawsuits, because hindsight bias applies; in cases where the outcome is bad, there is a tendency to exaggerate the capacity to predict that inevitability. This is the “you should have known it all along” effect. Even though juries may be biased in favor of physicians generally, they still must give them the “benefit of the doubt” in order to overcome hindsight bias. Thus, the question of who will likely prevail at trial comes down to the physician as defendant.

Which Side Will the Jury Vote For?

The severity of the injuries for malpractice plaintiffs may have risen as medical advances have made more complicated medical procedures possible. That places a greater burden on physicians to reassure jurors that they can vote for the physician and still live with themselves. What does it take for that to happen? The jurors must believe that the physician was motivated by the attempt to do the best thing possible for the patient. The recurring theme in all jury evaluations is a need for the jury to see a concerned and compassionate defendant as well as a competent one. Juries believe that those who are concerned about their patients are more careful and thoughtful, and more likely to make the best judgments.

Cases with favorable outcomes produced the following juror comments: “(The defendant) was intelligent and sincere while testifying;” and “The nurse did all she could under the circumstances and appeared 'earnest.'” Neil Vidmar. Medical Malpractice and the American Jury. The University of Michigan Press, Ann Arbor, Michigan (1995). Cases with unfavorable outcomes produced these juror comments: The doctor “was disingenuous, pompous and self-aggrandizing;” “He thought this was a waste of his time. We could tell that from the very first day;” and “During cross-examination [the defendant] was hostile, sarcastic and immature.” Id.

Conclusion

While it is clear that weak facts for the plaintiff make it easier for juries to find for physicians, 10%-20% of those cases are decided against the defendant. On the other hand, a much greater percentage of cases that reviewers think are indefensible result in a verdict in favor of the physician. In all cases the juries know that the outcome for the patient has been a negative one. Given that outcome bias can't be avoided, whether the jury will give the physician the benefit of the doubt lies with the dynamics within the courtroom. Juries respond to medical malpractice defendants more favorably than judges, insurance companies or medical reviewers do. Are juries fair to physicians? Yes they are; more so than any other group in society.

Linda S. Crawford, a member of this newsletter's Board of Editors, teaches trial advocacy at Harvard Law School and has been consulting with defendants on research-based effectiveness at deposition and trial since 1985.

Medical malpractice cases are high-stakes events. Although defendants continue to prevail in two-thirds of trials, when the plaintiff wins, the median amount of the verdict is $1.2 million; and developing information indicates that that figure is rising at an alarming rate. See, e.g., Jury Verdict Research, LPR Publications, Horsham, PA, 2003, 2005. According to the National Practitioner Data Bank, there were 17,298 medical malpractice payments made in 2005, either in settlement or after verdict, with a median payment of $174,569 for physicians; obstetrical case payments had a median of $300,000. National Practitioner Data Bank 2005 Annual Report, U.S. Department of Health and Human Services, Heath Resources and Services Administration, 5600 Fishers Lane, Suite 84-55, Rockville, MD 20857, pg 23. Given how large the awards are when there is a verdict against a physician, many in the medical profession and their defense teams have come to believe that juries are random and unfair. The conventional wisdom seems to be that judge-made decisions are a safer bet for med-mal defendants. Is this true?

Comparing Medical Malpractice Verdicts and Other Verdicts

If an evenly split number of cases go to trial, plaintiffs should win approximately 50% of the time. That is true in personal injury cases in general. Study after study has found that defendants win approximately half of their trials, and that situation has remained remarkably stable since the 1960s. Harry Klaven Jr., The Dignity of the Civil Jury, 50 Va. L. Rev. 1055, 1072 (1964). As recently as 2005, researchers were making the same findings. Shari Seidman Diamond and Mary R Rose, Real Juries, I ANN. Rev. Law & Soc. Sci. 255, 262 (2005). So, every year, overall, plaintiffs win approximately half of the cases that go to verdict.

Now contrast that with the win rate in medical malpractice cases ' the win rate is consistently higher for medical malpractice defendants than it is for any other type of case. The Federal Bureau of Justice Statistics, which has tracked win rates for medical malpractice defendants in the largest 75 counties in the country since 1992, shows that the win rate for medical malpractice plaintiffs is actually dropping: from 30% to 27%. Carol J. DeFrances et. al., Bureau of Justice Statistics, Jury Cases and Verdicts in Large Counties, 1995, 1996, 1999. If we remove the uncontested cases ' where liability is admitted and the only question is damages ' the statistics are even more favorable to defendants; the plaintiffs won in the contested cases only 11% of the time. Thomas, B. Metzloff, Resolving Malpractice Disputes: Imaging the Jury's Shadow”, Law & Contemp. Probs., Winter 1991; Patricia M. Danzon, Medical Malpractice: Theory, Evidence, and Public Policy 24, (1985).

Does 'Quality of Case' Affect the Difference in Med-Mal Case Outcomes?

If physicians are winning at twice the rate of other personal injury defendants, is it because a different quality of case goes to trial in the medical malpractice arena? Several studies have attempted to answer the question, and the answer is consistently “yes.” Historically, cases that were weak for the plaintiff went to trial while weak defense cases were settled. That may be changing, but in most studies, it is still clear that good medicine cases outweigh bad medicine cases in the courtroom. If that is the case, defendants should be winning the majority of their trials, and indeed they are.

Judges vs. Juries

Given the suspicion that so many malpractice defendants have for juries, would they be better off if they were judged by judges? It may come as a surprise to many that the answer to that question is, “no.”

Judges agree with the jury about 78% of the time; but when they disagree in non-medical malpractice cases, they are about evenly split between plaintiff and defendant. Harry Klaven, Jr. and Hans Zeisel, The American Jury, 1966. That is not true for medical malpractice cases; in medical malpractice cases plaintiffs win twice as often in front of judges as they do in front of juries. Thomas H. Cohen, Bureau of Justice Statistics, Tort Trials and Verdicts in Large Counties, 2001 at 4 tbl. 3; available at www.ojp.usdoj.gov/bjs/pub/pdf/ttvlc01.pdf; Kevin Clermont and Theodore Eisenberg, Trial by Jury or Judge: Transcending Empiricism, 77 Cornell L. Rev. 1124, 1992. This is striking since in other types of cases the agreement between judges and juries is similar. Judges generally have a high view of juries, and studies consistently show that. The fact that juries are kinder to physicians than judges are is a further indication that lay people should not only not be avoided by the defense, but perhaps should be appreciated more by the medical community.

Another common refrain among physicians is, “I'd rather be judged by a jury of my peers.” Medical providers generally worry that laypersons will lack the education and expertise necessary to understand what they did, what went wrong, and why. In study after study however, when asked if a medical provider had committed a medical mistake, medical reviewers found against physicians more often than juries did. In one large study, where physician reviewers found the medicine provided to a patient to be “indefensible,” juries sided with that same medical care provider 42% of the time. Taragin et. al., supra 9. Virtually every study that has asked the same question has found the same thing: Physician reviewers find malpractice more often than juries do. “Juries are several times more likely to depart from the judgment of the reviewers when doing so will exonerate the defendant than they are to disagree when doing so will lead to liability ' The repeated finding that juries rule in favor of defendant physicians more often than physician reviewers do is remarkable given the documented reluctance of physicians to label another physician's care as negligent.” Peters, supra 11 at 1476, see also: Paul C. Weiler et. al., A Measure of Malpractice, 1993.

The evidence thus shows that, despite what physicians and their defense teams believe, juries are not biased in favor of injured plaintiffs. This is true for several reasons. First, the public is generally concerned about excessive litigation. Indeed, comments such as “these people are just trying to get rich quick” are typical. This is even truer in medical malpractice cases than in other personal injury cases. One-third of people in one medical malpractice study said that plaintiffs are looking for easy money. Ellen L. Leggett, Jury Research Institute, Identifying Juror Bias and Their Impact on Cases, 1999. Jurors are particularly suspicious of those who are asking for compensation in situations similar to ones they have experienced themselves. If they did not take any action to seek compensation, why should this plaintiff feel entitled to money? After all, we all know bad outcomes are possible in all human endeavors, even in the medical care context.

Jurors also understand that medical malpractice cases began with a patient going to a medical provider with a problem; these doctors and nurses were only trying to help the patient get better. Sure, the general public usually holds physicians and other medical care givers to high standards when it comes to the quality of their decisions, but there is also a widely held belief that physicians are altruistic and working for the good of others, instead of for their own self-interests.

People tend to trust their doctors and they feel safer having gone to see them, even when there has been a negative outcome. Because of their own need to feel safe, jurors want to believe that all (or, at least, most) physicians make good decisions for their patients, and for the right reasons. In other words, they are doing the best they can, with the best of intentions.

The motivation of the defendant thus becomes a crucial decision point for juries. This is true because, by the time a case comes to trial, a negative outcome has already occurred for the patient. Typically, this works against the defendant, as we have seen in other types of lawsuits, because hindsight bias applies; in cases where the outcome is bad, there is a tendency to exaggerate the capacity to predict that inevitability. This is the “you should have known it all along” effect. Even though juries may be biased in favor of physicians generally, they still must give them the “benefit of the doubt” in order to overcome hindsight bias. Thus, the question of who will likely prevail at trial comes down to the physician as defendant.

Which Side Will the Jury Vote For?

The severity of the injuries for malpractice plaintiffs may have risen as medical advances have made more complicated medical procedures possible. That places a greater burden on physicians to reassure jurors that they can vote for the physician and still live with themselves. What does it take for that to happen? The jurors must believe that the physician was motivated by the attempt to do the best thing possible for the patient. The recurring theme in all jury evaluations is a need for the jury to see a concerned and compassionate defendant as well as a competent one. Juries believe that those who are concerned about their patients are more careful and thoughtful, and more likely to make the best judgments.

Cases with favorable outcomes produced the following juror comments: “(The defendant) was intelligent and sincere while testifying;” and “The nurse did all she could under the circumstances and appeared 'earnest.'” Neil Vidmar. Medical Malpractice and the American Jury. The University of Michigan Press, Ann Arbor, Michigan (1995). Cases with unfavorable outcomes produced these juror comments: The doctor “was disingenuous, pompous and self-aggrandizing;” “He thought this was a waste of his time. We could tell that from the very first day;” and “During cross-examination [the defendant] was hostile, sarcastic and immature.” Id.

Conclusion

While it is clear that weak facts for the plaintiff make it easier for juries to find for physicians, 10%-20% of those cases are decided against the defendant. On the other hand, a much greater percentage of cases that reviewers think are indefensible result in a verdict in favor of the physician. In all cases the juries know that the outcome for the patient has been a negative one. Given that outcome bias can't be avoided, whether the jury will give the physician the benefit of the doubt lies with the dynamics within the courtroom. Juries respond to medical malpractice defendants more favorably than judges, insurance companies or medical reviewers do. Are juries fair to physicians? Yes they are; more so than any other group in society.

Linda S. Crawford, a member of this newsletter's Board of Editors, teaches trial advocacy at Harvard Law School and has been consulting with defendants on research-based effectiveness at deposition and trial since 1985.