Malpractice Juries Tend to Side More With Doctors, Researcher Finds

Charles Toutant
New Jersey Law Journal
http://www.law.com

Popular belief, at least in medical communities, holds that juries in medical malpractice cases tend to side with plaintiffs, even where the case against a doctor is a weak one.

But jurors actually tend to believe doctors more than they do plaintiffs, says a law professor who examined numerous data on medical malpractice litigation, including cases in New Jersey.

Philip Peters Jr., of the University of Missouri-Columbia School of Law, concluded that juries treat doctors favorably, “perhaps unfairly so,” and are more likely than even fellow physicians to defer to a doctor’s opinion.

Peters found that most malpractice suits end in defense verdicts, and that the cases that go to trial tend to be the weakest ones, since those with strong evidence usually settle before trial.

In an examination of win rates, Peters found that 27 percent to 30 percent of filed medical malpractice suits end in a plaintiff’s verdict, the lowest success rate of any type of tort litigation.

Peters researched the data to test the assumption that juries lack capacity to evaluate medical malpractice suits fairly — an assumption implicit in legislation pending in Congress that would create specialized courts for such cases.

“Politicians and critics of jury performance should think twice before concluding that doctors will be treated more favorably in health courts,” wrote Peters, whose report will be published in May in the Michigan Law Review.

Among the data Peters reviewed was a study of 8,231 med-mal suits filed in New Jersey between 1977 and 1992. That study, led by Mark Taragin of the University of Medicine and Dentistry of New Jersey, said 78 percent of the cases that went to trial were weak, 10 percent involved negligent care and 11 percent were too close to call. The New Jersey study was of suits brought against doctors insured by now-defunct Medical Inter-Insurance Exchange.

Other works cited in Peters’ report, with smaller samples than the New Jersey study, came to similar conclusions, although the ratio of bad care to good care varied widely. Data from Florida, Michigan and North Carolina also were included in the study.

The New Jersey study and others compared jury verdicts in individual cases with independent findings by medical or legal experts. The result was that the odds of a plaintiff’s verdict increased in cases with greater evidence of negligence.

But the correlation was not perfect, especially where the independent expert believes the patient was injured by physician negligence. Those studies showed plaintiffs’ verdicts in 10 percent to 20 percent of cases with weak evidence and 50 percent of the cases with strong evidence of negligence.

In the New Jersey study, MIIX asked physicians to evaluate incoming claims and rate them as defensible, indefensible or unclear. Plaintiffs won 21 percent of those cases rated as defensible, 30 percent of those rated unclear and 42 percent of those rated indefensible. Thus, plaintiff wins were in the minority even in the most meritorious cases.

New Jersey’s study and others showed generally that patients whose claims were deemed weak by reviewers were unlikely to win a jury verdict; that patients with borderline cases were twice as likely to win as those with weak cases; and that patients with claims deemed strong were most likely to prevail before a jury. Peters called the results “startlingly consistent.”

Juries were surprisingly deferential to doctors, Peters said. While they were very likely to find for the defendant in cases where the reviewer felt the plaintiff’s evidence was weak, they were just as likely to return a defense verdict when the evidence was deemed strong.

“Thus, juries are several times more likely to depart from the judgment of the reviewers when doing so will exonerate the defendant than they are to disagree when doing so will lead to liability,” Peters wrote. “The repeated finding that juries rule in favor of defendant physicians more often than physician reviewers do is remarkable given the documented reluctance of physicians to label another physician’s care as negligent.”

While such findings should give comfort to doctors, Peters noted that jurors and external evaluators do not always see eye to eye. Some cases won a verdict even when the reviewers felt it was not warranted.

He attributed the largest portion of the discrepancy to the normal difference of opinion among doctors about a particular case. Jurors may be reluctant to hold a doctor liable where evidence is unclear or conflicting, out of appreciation for the burden of proof. And jurors may find doctors credible because of their high social status or because the doctors can afford better lawyers and expert witnesses.

Peters concludes that juries may be skeptical of patients who sue their doctors, and finds that doctors have a significant advantage in front of juries. But he said the data show that jurors are not incompetent. “Three decades of research provide an ample evidentiary basis for evaluating jury decision-making,” he said.

“Both piecemeal reforms and more fundamental alternatives to malpractice litigation should not be driven by the mistaken assumption that juries treat physicians unfairly,” Peters wrote. “Although the current system of resolving malpractice claims has many shortcomings, neither randomness nor favoritism toward injured patients is among them.”
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