Medical malpractice and the American jury: Confronting the myths about jury incompetence, deep pockets, and outrageous damage awards.

Vidmar, N. (1995). Medical malpractice and the American jury: Confronting the myths about jury incompetence, deep pockets, and outrageous damage awards. Ann Arbor, MI: University of Michigan Press.

Less than 10% of cases went to trial; 50% settled. Plaintiff win rate low and median award very modest (especially for malpractice cases).

This book deals only with juries in medical-malpractice cases, not with the tort-litigation system, although the jury has a central role in that system. The author challenges the view that juries are irrational, biased against physicians and hospitals, overgenerous to plaintiffs, and ready to go for the deep pockets of insurance companies.
The book is based on the author’s study of 895 North Carolina lawsuits, representing 95 percent of those filed from July 1, 1984, through June 30, 1987. Of these cases, about half were settled before trial, and 40 percent were dropped. Only 118 reached the trial stage. Three were tried by judge; 31 were settled after the trial began, were disposed of by directed verdict, or were withdrawn by the plaintiff; and the remaining 84 (9.4 percent of those studied) were tried by jury.
A second study of 326 cases filed from July 1, 1987, through December 31, 1990, in 14 of North Carolina’s most populous counties showed that 51 percent were settled and 40 percent were terminated before trial without a settlement. Altogether, 25 cases (7.7 percent) were tried by a jury. The author concludes that, statistically, the results of the two studies were identical.
In the first study, 17 plaintiffs (20 percent) prevailed, and in the second study plaintiffs in 4 of the 25 trials (16 percent) prevailed. In these 21 cases there were three awards of $1 million, one award of $750,000, and two awards of $300,000. The remaining awards were much smaller (median, $36,500). The cases with large awards involved fairly gross negligence and severe injuries. The author notes that assertions of jury bias and inability to reach decisions rationally are unsubstantiated. He comes to the unsurprising conclusion that large settlements are made in cases of clear liability and major damages. In studies in other states, the plaintiffs won in 13.5 percent to 53 percent of jury trials held in 1975 or later (median, about 29 percent). Thus, Vidmar says, North Carolina is not atypical, with findings for the plaintiff in about 20 percent of cases.
The author draws a number of conclusions that neither inform nor startle. Specialists in medical malpractice, he finds, are more likely to be involved in jury trials than inexperienced lawyers. Hospitals are more likely to settle to avoid a trial. The data Vidmar presents do not “provide much insight on why plaintiffs go to trial against such stiff odds of winning before juries.” Cases do not get settled because the parties’ estimates of damages are too far apart. Physicians go to trial to protect their reputations, but may also seek to avoid trials in order to avoid publicity. The author refers to “asymmetric reliability in estimates of negligence” — that is, plaintiffs would settle cases more often if they realized the weakness of their arguments. Contingency-fee arrangements have a tendency to push counsel to go to trial in order to earn a fee. The author concedes that the hypotheses presented involve “mostly educated guesses and reasonable conjecture rather than . . . systematic evidence.”
Vidmar concludes that juries are quite capable of understanding evidence and its complexities and can distinguish between negligence and normal risks of treatment. In a study of 8231 malpractice cases by the physician-owned New Jersey Medical Insurance Exchange, the panel of physicians found bad care in 31.7 percent of cases, good care in 37.7 percent, and care of ambiguous quality in 30.6 percent. Physicians’ findings of negligence liability, the author concludes, are no better than those of juries.
Although the damage awards in malpractice cases are higher than in other personal-injury actions, Vidmar explains the discrepancy by legal theories and rejects the “deep pocket” hypothesis. He relies on jury-simulation experiments that show that damages for pain and suffering in malpractice cases match those in automobile-accident cases. Another jury-simulation effort led to the conclusion that juries are no more generous to plaintiffs than panels of lawyers and judges.
The author tries to restore our trust in the juries involved in medical-malpractice cases. But the civil jury is not in danger of being replaced. The medical-malpractice tort system has long been under attack, however, partly because of the inadequacies of juries. This complex system is sustained by legal principles that define medical malpractice as a breach of standards of professional care by a physician. The system depends on lawyers for claimants and for insurance companies, and on the availability of malpractice insurance. Many have recommended changing to a system that does not attribute adverse medical outcomes to malpractice and replacing the current fault-based judicial system with a no-fault administrative system. It has also been recommended that patients insure themselves against adverse medical outcomes, a practice that would avert the need to sue physicians. Universal health coverage could also cover all adverse outcomes and eliminate malpractice lawsuits.
In 1973, the great study of medical malpractice by the Department of Health, Education, and Welfare was published (it is not cited by Vidmar). This report found that relatively few physicians are sued for malpractice and that of the lawsuits that do go to trial, most end in verdicts for the physician. But physicians fear such suits because they are a professional threat and a personal ordeal. The current system of private malpractice actions does not adequately control the professional behavior of physicians. But medical-practice boards nationwide have a poor record of enforcing professional discipline, and malpractice actions have become the only available disciplinary instrument.
Tort reform, which has sought to limit certain kinds of suits, is a clumsy effort to reduce the cost of malpractice insurance by capping damages for pain and suffering and limiting punitive damages. It has produced no major reductions in malpractice awards and has lost steam in recent years.
Much relevant history cannot be found in this book, even though it is directly related to the management of malpractice claims. Jury verdicts are only part of the story. Although the author refers to studies preceding his own, he has limited his research, whether by accident or design. Research in the field should go back to the 1973 Report of the Secretary of Health, Education, and Welfare and should not disregard the many other important studies since. The sources for this work come from recent computer data bases that cite few works published before 1980. Just as the burning of the great library of Alexandria wiped out much earlier knowledge, the creation of computer data bases around 1979 or 1980 put earlier materials out of easy reach for researchers, who disregard earlier knowledge. Fortunately, this knowledge is available if researchers leave their computer consoles to browse in the library.

http://www.nejm.org/doi/full/10.1056/NEJM199607113350219