That Malpractice 'Epidemic'?

Legal Analysis Finds That Patients Fare Poorly in Court

http://www.washingtonpost.com

Juries in medical malpractice cases tend to sympathize with the doctors being sued rather than the patients who are suing them, a law professor at the University of Missouri at Columbia has concluded after analyzing three decades of research on the subject.

There is no empirical evidence to support the much-publicized notion that the tort system amounts to a lottery for injured plaintiffs, as President Bush and others have long maintained, writes Philip G. Peters Jr. in the May edition of the Michigan Law Review. If anything, the system appears to be biased against them.

For several years the Bush administration has pushed to reform the tort system, decrying an “epidemic” of frivolous malpractice cases and “runaway” jury verdicts that officials maintained were forcing doctors out of practice and leaving patients without needed medical care. Malpractice reform became a major topic in the 2004 presidential campaign; legislation is currently pending in Congress to transfer medical negligence cases to administrative health courts, Peters notes.

Yet in his 42-page analysis, he reports that studies examining closed claims in three states, as well as those involving major insurance companies, found that the current jury system favors defendant doctors.

“The studies reveal that juries treat physicians very favorably, perhaps unfairly so,” Peters writes, “and are more likely to defer to the judgment of a physician defendant than other physicians are.”

Doctors, he found, win about half of the cases that independent experts who review them believe should result in a plaintiff’s victory. That juries rule in favor of doctors more often than independent medical reviewers do is particularly surprising, Peter says, “given the documented reluctance of physicians to label another physician’s care as negligent.”

Overall, injured patients win only about 27 percent of all cases that go to trial — the lowest rate of any category of tort litigation, researchers have found.

There are several reasons for the bias in favor of physician defendants, Peters notes. Among them are the defendants’ superior economic resources and social standing; jurors’ willingness to give a doctor the benefit of the doubt in cases in which the evidence is confusing or complicated; and cultural prohibitions against seeming to profit from injury.

A jury’s lack of medical expertise, Peters says, tends to favor the doctor, not the patient.

“Critics assume that the ‘battle of experts’ frees juries to award unjustified recoveries,” he writes. “The data suggest that it is more likely to shelter negligent physicians.”

One proposed solution — to turn cases over to specialized health courts — might result in less-favorable results for physicians, he suggests. Studies have consistently found that malpractice plaintiffs fared better in front of judges than in front of juries.

— Sandra G. Boodman
see original

About