Are Juries to Blame for High Malpractice Awards?
The Evidence May Tell a Different Story
Neil Vidmar wrote in Medical Malpractice and the American Jury, “Complaints about medical malpractice juries are not new.” Medical malpractice verdicts are often portrayed as “junk justice” or “jackpot justice” because of the wide publicity about record-breaking jury awards like the $3 million plaintiff's verdict in the McDonald's hot-coffee case.
In the public's perceptions, trial lawyers have become one of the most distrusted professional groups in the U.S. The public often associates trial lawyers with words like “shark,” “ambulance-chaser,” “predator,” as well as middle-of-the-night TV commercials urging us to sue someone. Unfortunately, med-mal is a highly visible example of why the reputation of trial lawyers has deteriorated so badly in public esteem.
It's an especially serious problem for the plaintiffs' bar. According to the American Association for Justice (the trial lawyers' national association), this was part of the reason that their preferred term is now “civil practice attorney.” AAJ has dropped “trial lawyer” completely and would like everybody else to do the same. Whatever you call them, plaintiffs' attorneys are often blamed for causing juries to wrongly side against doctors on the question of medical negligence and to award more in damages than justice requires.
But this rep is a bad rap for lawyers and juries. “Doctors & Juries,” an article in the May 2007 Michigan Law Review reported that “Although juries are widely believed to be biased against physicians, patients lose twice as many medical malpractice verdicts as they win.”
The article compared studies of cases that resulted in jury verdicts and evaluations of the same facts by one or more physicians. The analytical methods of the studies differed greatly, but the comparisons showed surprising similarities: plaintiffs won about 10 to 20 percent of the cases with weak evidence of negligence and 50 percent of the cases with strong evidence.
Complex Information: Beyond a Jury's Grasp?
At times, juries are called upon to understand complex information. In a recent case (Caputo, Nicholas Tyler ANO v. Long Island Jewish, et al, Supreme Court, Queens County) both sides presented a great deal of testimony and evidence about fetal heart monitor strips that showed tracings of “variable decelerations” in the baby's heart rate. The plaintiff's attorney said that the tracings showed umbilical cord compression, which can cause oxygen deprivation to the baby.
Variable decelerations appear as downward-moving tracings on the heart monitor strip. These are the most common decelerations seen in labor and are generally associated with a favorable outcome. In this instance, the tracing moved upward again as the baby's heart rate returned to the normal range when the cord was not being compressed. The tracings created a “V” shape, which meant that the baby's heart rate was strong enough to recover quickly.
The OB/GYN doctors who testified as expert witnesses for the plaintiff said that the episodes of variable decelerations required a judgment call on Dr. Stern's part. However, each said it would have been reason enough to perform an emergency C-section.
Dr. Stern testified that, although she was concerned about the variable decelerations, she also saw indications that the baby's heart rate was strong enough to let natural labor continue. She was reassured by the brief duration of the variable decelerations and the rapid return of baby's heart rate to the normal range. It showed, she said, that the baby had adequate reserves of strength and was not in distress. OB/GYN physicians called as expert witnesses supported her decision not to do an emergency C-section.
Not all juries are equally motivated or have equal capabilities to understand and make proper use of complex evidence or testimony. However, lack of experience with or capacity to understand complex material can be mitigated. Judges can require experts to simplify their testimony whenever possible, and acceptable audio-visual aids can be used in the courtroom.
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