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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.
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
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.
|1||Are Medical Malpractice Juries Engaged in Malpractice?||3|
|2||Proplaintiff Bias, Rising Win Rates, and Deep Pockets: Some Major Problems with the Critics' Evidence||11|
|3||A Profile of Jury Verdicts in North Carolina||23|
|4||How Typical Is North Carolina? Data from Elsewhere in America||37|
|5||The Cases That Went to Trial||49|
|6||Case Studies of Settlement Failure||59|
|7||The Litigation Process: Putting the Case Studies into Context||69|
|8||Hypotheses on Case Selection and Their Meaning in Understanding Jury Verdicts||83|
|9||Malpractice: Behind a $26-Million Award to a Boy Injured in Surgery||95|
|10||Postscript to Melis v. Kutin||111|
|11||An Introduction to the Liability Controversy||121|
|12||Are Trials Always Technically Complicated? Three Case Studies||127|
|13||Complicated Trials: Some Case Studies||145|
|14||Jury Performance Compared: Doctor Judgments of Negligence and Other Criteria||161|
|15||A Summary Perspective on Liability Decisions||175|
|16||A Prologue to Damages||185|
|17||Spiraling Awards, "Deep Pockets," and Jury Sympathy: The Claims and the Evidence||191|
|18||Two Tests of the "Deep Pockets" Hypothesis||203|
|19||Jurors versus Legal Professionals: Two Studies||221|
|20||Voices from the Jury Room||237|
|21||Economic Loss and Punitive Awards||249|
|22||A Summary Perspective on Damage Awards||259|
|23||Diagnosis of Misdiagnosis: The Tort Reform Debate - A Concluding Essay||265|