Doctors & juries.

AuthorPeters, Philip G., Jr.

Physicians widely believe that jury verdicts are unfair. This Article tests that assumption by synthesizing three decades of jury research. Contrary to popular belief, the data show that juries consistently sympathize more with doctors who are sued than with patients who sue them. Physicians win roughly half of the cases that expert reviewers believe physicians should lose and nearly all of the cases that experts feel physicians should win. Defendants and their hired experts, it turns out, are more successful than plaintiffs and their hired experts at persuading juries to reach verdicts contrary to the opinions of independent reviewers.

TABLE OF CONTENTS INTRODUCTION I. JURIES II. PLAINTIFF WIN RATES A The Fifty Percent Hypothesis B. The Win Rate in Malpractice Cases C. Selection Effect III. JURY-EXPERT AGREEMENT A. Taragin et al. B. Studdert et al. C. Metzloff D. Farber and White E. Daniels and Andrews F. Peeples, Harris, and Metzloff G. Liang H. Judge-Jury Agreement I. Synthesis of the Findings IV. DISAGREEMENT A. Inter-Rater Variability B. Reviewer Bias C. Asymmetric and Incomplete Information D. Scientific Complexity E. Procedural Barriers to the Ascertainment of Truth F. Jury Bias 1. Media 2. Social Norms against Claiming 3. Challenging Privileged Members of Society G. Unequal Litigation Resources H. Medical Uncertainty and the Burden of Proof I. Synthesis CONCLUSION INTRODUCTION

Legislation is pending in both houses of Congress to transfer medical malpractice cases from civil juries to administrative health courts. (1) The Institute of Medicine also wants to take malpractice cases away from juries and endorses experiments with both health courts and a system of binding early settlement offers. (2) Each of these proposals is premised in part on the intuitive assumption that juries lack the capacity to resolve medical malpractice disputes fairly. This Article evaluates that premise. It collects and synthesizes three decades of empirical research on jury decision-making, updating the seminal review done by Neil Vidmar over a decade ago.

Four important findings emerge from the data. First, negligence matters. Weak cases rarely win, close cases do better, and cases with strong evidence of medical negligence fare best. Second, the agreement rate between juries and experts is very high in the class of cases that most worries critics of malpractice litigation, that is, cases with weak evidence of negligence. Juries agree with expert reviewers in eighty to ninety percent of these cases. That is a better agreement rate than physicians typically have with each other. Third, the agreement rate is much lower in cases with strong evidence of negligence. Doctors consistently win about fifty percent of the cases that experts believe the plaintiffs should win. Fourth, the consistently low success rate of malpractice plaintiffs in cases that expert reviewers feel they should win strongly suggests the presence of one or more factors that systematically favor medical defendants in the courtroom, such as better litigation teams or pronounced jury reluctance to find doctors liable. From the perspective of defendants at least, jury performance is remarkably good.

This Article proceeds as follows. Part I reviews the widespread criticism of jury performance and the range of views on this issue held by academic experts. Part II examines the data showing that defendants win most medical malpractice jury trials. It compares those findings with the data indicating that most trials involve cases with weak evidence of negligence.

Part III synthesizes the studies which have compared jury verdicts with the opinions of expert reviewers. These studies have consistently found a direct correlation between the strength of the plaintiff's case as evaluated by an expert and the likelihood of a plaintiff's verdict. However, the studies also show that jury performance is not perfect, especially in cases with strong evidence of negligence.

Part IV reviews the reasons why juries and reviewers sometimes reach different conclusions about the same case and then identifies the factors most likely to explain the unique pattern of disagreement found in medical malpractice cases. Those factors are (1) the normal variation that occurs when multiple individuals are asked to evaluate the same conduct (interrater variability), (2) the superior litigation resources sometimes available to one of the parties, usually the defendant, (3) jury antipathy toward people who sue their physicians, and (4) jury reluctance to find a doctor liable when the proper outcome is unclear. At present, we lack the data needed to estimate the relative influence of each of these factors.

The studies reveal that juries treat physicians very favorably, perhaps unfairly so. The data also justify the surprising conclusion that juries are more likely to defer to the judgment of a physician defendant than other physicians are. As a consequence, politicians and critics of jury performance in medical malpractice cases should think twice before concluding that doctors will be treated more favorably in health courts.

  1. JURIES

    Hapless juries have become the symbol of a civil justice system run amok. (3) Critics claim that juries render irrational and unjust verdicts. (4) The jury trial, claims critic Peter Huber, is really "a generous sort of charity." (5) According to this account, malpractice insurers are frightened into paying substantial sums to settle frivolous lawsuits because they dread the "lottery" of a jury trial. Those settlements then spawn a new wave of frivolous claims. (6) Through this domino effect, jury incompetence poisons the entire civil justice system.

    Even respected legal scholars are skeptical of the jury's capacity to decide malpractice cases fairly. Clark Havighurst, for example, has said that "realism compels recognition that juries are often poorly positioned to choose reliably between the well argued, but often highly confusing, theories of the two sides' experts" and "often fall back on such irrelevancies as the witnesses' demeanor and style of presentation or sympathy for the plaintiff's plight or the defendants' reputation." (7) Stephen Sugarman also doubts the ability of jurors to choose between competing experts "whose scientific credibility the jurors are unlikely to accurately appraise." (8)

    Is that picture accurate? The most recent extended review of the literature appears in Neil Vidmar's classic 1995 book Medical Malpractice and the American Jury. (9) In this book, Vidmar summarizes some of the empirical studies, including his own, that compared jury verdicts to the ratings given to the plaintiff's medical care by independent physicians. (10) From this body of data, he concludes "that there is reasonable concordance between jury verdicts and doctors' ratings of negligence. On balance, juries may have a slight bias in favor of doctors." (11)

    For some scholars, however, empirical evidence of a statistically significant relationship between jury verdicts and expert opinion is too thin a basis for concluding that juries do their job well. Mark Hall rightly notes that "[f]inding a statistical association between jury results and expert opinions means only that jury verdicts as a whole are not entirely random or unpredictable." (12) Thomas Metzloff used similar caution in 1993 to describe the empirical evidence then available, noting only that jury verdicts were not "random." (13) Based on his own empirical research, he concluded that "[m]ost of the time, jury outcomes represent a fair resolution of the claim, but the risk that the result will not be fair is real and troubling." (14)

    If that is the best that can be said in defense of jury performance, then critics of jury decision-making have a powerful basis for complaint. However, the body of empirical data currently available offers insights into jury behavior that are both more complex than the public rhetoric and, at least for physicians, more reassuring.

  2. PLAINTIFF WIN RATES

    Although juries are widely believed to be biased against physicians, patients lose twice as many medical malpractice verdicts as they win. Does this refute the charge that juries favor injured claimants? Not necessarily. Standing alone, win rates tell us very little about the fairness of jury verdicts. According to a convincing body of empirical research on medical malpractice trials, weak claims dominate the mix of cases that go to trial. The poor quality of the pool of cases that go to trial means that it is inappropriate to expect a fifty-fifty split in verdicts.

    Yet the intuitive appeal of this benchmark is so powerful that the Supreme Court and prominent legal scholars have employed it to evaluate the fairness of adjudicative processes. That is a mistake. Although the poor success that malpractice plaintiffs have in front of juries does place a ceiling on the magnitude of any proplaintiff bias that might exist, the low plaintiff win rate does not tell us whether the right claims win or even whether the fight fraction does. (15)

    1. The Fifty Percent Hypothesis

      The belief that a fair adjudicatory process will produce a roughly even split in verdicts is widely held, even by sophisticated observers. Harry Kalven, for example, believed that the fifty-five percent plaintiff win rate that he found in his large study of personal injury cases showed that juries are not "monolithically pro-plaintiff." (16) Similarly, the Supreme Court inferred that a disability benefits process was procedurally fair from the fact that nearly fifty percent of the benefits denials were reversed. (17) Win rates are an appealing measure of substantive fairness. The more balanced the outcomes, the more evenhanded the process seems.

      The intuition that a fair process will produce an even split in verdicts also has powerful theoretical support. According to the "fifty percent hypothesis" of negotiation theory, (18) the cases most likely to settle...

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