The constant refrain heard in the media is how “frivolous” medical malpractice lawsuits are driving up the cost of healthcare. Juries are characterized as writing blank checks for plaintiffs, enabling their cases to take on the air of “get rich quick schemes.” The “problem” is seen as so great that legislation is pending in Congress to take medical malpractice cases away from civil juries and create a specialized administrative court, to ensure the runaway juries do not reward plaintiffs with windfalls.
The question that presents itself is whether this is true, or merely the cleverly orchestrated public relations push of the medical establishment. A study titled “Doctors & Juries” by Philip Peters, Jr, published in the Michigan Law Review, Vol105, p. 1453, (May 2007) produced some surprising findings.
Based on three decades of empirical research, the study noted that negligence matters. Cases that demonstrate clear negligence on the part of the doctors have the highest percentage of wins for plaintiffs. In cases with weak evidence of negligence, the juries agreed with medical experts 80 to 90 percent of the time (a greater level of agreement than among doctors themselves).
Of the most surprising findings was that doctors win 50 percent of the cases involving strong evidence of negligence that medical experts think they should lose. This finding suggests that there is jury bias in cases involving medical malpractice, but not the kind critics think is present. It suggests that the jury is biased in favor of the doctors and even in cases where strong evidence of medical negligence is presented, juries still find in favor of the doctors.
Possible reasons are varied, from the doctor’s ability to hire more experienced attorneys and expert witnesses, to the respect and deference shown towards doctors as a class and a deep reluctance to find doctors guilty.
On study cited showed that “medical malpractice plaintiffs won 50% of their bench trials [trials in front of a judge alone] but only 26% of their jury trials.” One would expect that the judges, who spend all of their time listening to attorneys and expert witness, would be more skeptical of plaintiff cases, and would be unlikely to be easily swayed by clever trial lawyers or their claims. However, it appears a judge’s skepticism is focused on the doctor’s attorneys.
The study also suggests that because of the bias in favor of doctors, plaintiffs, even those with evidence of strong medical negligence, need to obtain the services of the most sophisticated, experienced attorney they can find. The study reports that plaintiffs often have attorneys with less experience in the courtroom. The defendant doctors often have attorneys who specialize in defense of medical professionals, paid for by their medical malpractice insurer. The insurer also often has a stable of experienced expert witness it can call on for any case.
Because of the inherent bias juries demonstrate against medical malpractice plaintiffs, it is essential for plaintiffs’ litigation teams to be as experienced as possible. They must not only present a compelling case that demonstrates the medical negligence that injured their clients, but they must overcome the bias the jury harbors towards their client.
If you have been injured by medical malpractice, when you interview prospective attorneys, ask them if they understand the issue and how they will build a case that can successfully overcome that additional hurdle.