Do Jurors Favor Doctors or Plaintiffs?

We often hear doctors and hospitals complain that the civil justice system favors plaintiffs in malpractice litigation. In support of that view, they cite “outrageous” verdicts, liberal venue rules and the fact that case are tried in front of juries that more closely resemble the patient rather than the provider.

Is their view of the system accurate? I think not. In fact, one can make a credible argument that, if anything, the system is more favorable or “fair” to the doctors and the hospitals.

For purposes of this debate, let’s define “fairness” strictly in terms of payments on claims. In a perfectly “fair” system, all medical mistakes which represent true breaches in the standard of care would result in payment to the plaintiff, and the size of that award would correspond precisely with the extent of the loss, no more, no less.

Under such a paradigm, when a non-negligent error in judgment results in a plaintiff’s verdict, or when an acknowledged error leads to an excessive jury award, one might say that the system has “favored” the plaintiff. Conversely, when a doctor escapes liability for a negligent act, or when a jury award is less than appropriate, the system may be said to “favor” the doctor. With those parameters in mind, let’s consider the realities of medical malpractice litigation and see whether the system more often “favors” the plaintiff or the defendant.

Certainly the system occasionally produces lottery-sized verdicts for the plaintiff,

witness the Philadelphia verdicts of $50 million and $100 million respectively within recent time. However, those are rare anecdotal events which represent extreme results. Furthermore, the “overpayments” in those cases are more than counter-balanced by the “non-payments” that result from two circumstances at the other end of the spectrum:

• First, there is the matter of unreported medical errors. It has been suggested in a study sponsored by the National Academy of Science that the number of deaths resulting annually from medical errors in this country approaches 90,000. At such a level, medical mistakes represent one of the leading causes of death in our nation. Unfortunately, a large number of those mistakes are never made known to the patient, so the victims never contact an attorney, let alone have the opportunity to litigate their claim. Thus, the failure to disclose medical errors results in a huge number of “non-payments.”
• Second, even in those instances where the medical mistake is known or suspected by the patient, a very legitimate claim may still end up as a “non­payment” because the case lacks enough damage to merit pursuit. Every malpractice attorney in the state regularly sees cases where liability is clear, but the amount of the damages is simply inadequate to justify the front-end investment of time and money which is necessary to litigate a malpractice case. Thus, while automobile insurance and other casualty carriers would almost never escape payment on a $50,000 claim, it is quite routine for a $50,000 medical mistake to result in a “non-payment” by a malpractice carrier.

On an annual basis, the size of the “non-payment” that results from these two circumstances probably dwarfs the “overpayment” that results from an occasional excessive jury award.

Even if we move away from the examples at the extreme ends of the spectrum and analyze results in more typical cases, one can make the argument that the system still favors the medical provider. To analyze the results in these middle-ground cases, we should disregard all cases which end in a settlement since neither side can complain about overpayment or underpayment when they both agreed on the number. Instead, let’s focus only on the cases that go to verdict.

As stated above if, a clear medical error results in a defense verdict, the system will have “favored” the doctor, whereas it will have “favored” the plaintiff if a doctor is held liable in a situation where there was no breach in the standard of care. Each of those scenarios would represent an “incorrect” verdict (i.e. a verdict which is different from that which would result from a truly objective appraisal of the evidence.)

Who is more frequently victimized by “incorrect” verdicts. While there are no reliable statistics to cite, a survey of trial judges across the state would likely show significantly more defense verdicts in cases that the plaintiff should have won rather than the converse. The same is probably true about verdict amounts, i.e., if asked, judges would more often state that awards are too low rather than too high. If so, then one would conclude that, on balance, jury results more often favor doctors rather than plaintiffs.

Why might that be so? Probably because jurors still have an innate respect for physicians despite the increased antagonism toward the medical profession generated by managed care.

In sum, when medical providers start to complain about the system favoring the patients in litigation, one can rebut that view by citing the net “underpayment” on claims that results from hidden mistakes, the rejection of smaller damages cases, and the relatively high number of “incorrect” defense verdicts. Thus, that if anyone is short-changed by the system, it is the patient, not the doctor or hospital.