Five Common Myths of Medical Malpractice Trials and Why We Should Not Be Afraid to Try Cases, 0121 SCBJ, SC Lawyer, January 2021, #40

• Author: By John E. Hall, Jr., Lauren Spears Gresh and Jonathan Arndt
• Position: Vol. 24 Issue 4 Pg. 40

Five Common Myths of Medical Malpractice Trials and Why We Should Not Be Afraid to Try Cases

No. Vol. 24 Issue 4 Pg. 40

South Carolina BAR Journal

January, 2021

By John E. Hall, Jr., Lauren Spears Gresh and Jonathan Arndt

It is risky. It is volatile. It is expensive. They are unpredictable. They are sympathetic. They are unsophisticated. These are just some of the descriptors you hear in conversations and articles discussing medical malpractice trials and juries. Few things strike more fear into medical liability insurers than the prospect of taking a malpractice claim to trial. After all, it seems that a day rarely goes by without media coverage of another multi-million-dollar jury award to a plaintiff/ patient. But is the perception really all that it seems? We believe it is not. In fact, according to the Physician Insurers Association of America (PIAA), insurers prevail in 91% of the medical negligence claims that received a verdict between 2003 and 2012. Yet, still, only 8% of claims make it to the verdict stage of trial.

Why? Because almost all cases that are not dropped, withdrawn, or dismissed end in a plaintiff settlement. While there are certainly cases where settlement is appropriate for defendants—those cases where liability is indisputable—there are also cases where liability is more uncertain and settlement is sought nonetheless, which brings us back to fear.

The fear of trial stems from fear of uncertainty. Uncertainty lies with concerns regarding jurors and experts, awards and costs, which creates voids that are filled with perceptions of worst-case scenarios. Most common is the perception that jurors are sympathetic to plaintiffs, that they do not understand the science or medicine, and that they are downright unpredictable. There is also the perception that it costs too much to try a case and the result, if for the plaintiff, will likely be an astronomical award. But these perceptions are built upon myths that can be dispelled by data, and we argue that once they are put to bed, insurers can take advantage of the 91% success rate of trials and reduce overall indemnity at the same time.

Myth #1: Juries are sympathetic to plaintiffs

Insurers and defendant/physicians may be hesitant to take a medical malpractice case to trial because of the fear that jurors will be swayed by a sympathetic, injured plaintiff and perceive the physician or hospital as an evildoer with deep pockets. However, empirical research data contradicts this idea.

In a 2005 study, the latest available, from the U.S. Bureau of Justice Statistics, there were an estimated 2,449 medical malpractice cases tried before juries across the United States.^[1] Of these jury trials, plaintiffs prevailed in less than a quarter.^[2] Research also suggests that physicians win 80% to 90% of jury trials with weak evidence of negligence, about 70% of cases with moderate evidence of negligence, and 50% of cases where there is strong evidence of medical negligence.^[3] So, even when it is fairly evident that the physician was negligent in some way, juries still side with physicians half of the time.

These figures show that juries do not make their decisions based solely on their emotional attachment to an injured plaintiff. In fact, a series of interviews with jurors from North Carolina revealed that jurors —describe[] their attitudes along two main themes: too many people want to get something for nothing; and most doctors try to help people and should not be blamed for simple human mis-judgment or a momentary lapse of concentration.”^[4] Furthermore, other interviews of jurors conducted by Hans and Lofquist revealed that —jurors often penalize[] plaintiffs who [do] not meet high standards of credibility and behavior, including those who [do] not appear as injured as they claimed, those with preexisting medical conditions, and those who [do] not do enough to help themselves recover from their injuries.”^[5] Our own experience backs these sentiments as well. In our post-trial discussions with jurors, we often hear complaints that the plaintiff's attorneys spent too much time emphasizing the emotional elements of the case rather than on the medicine.

Likewise, evidence does not support the idea that jurors render verdicts for plaintiffs and against doctors or hospitals simply because they perceive the doctor or hospital as having the “deep pockets” to pay awards. In a study conducted by Vidmar, 147 people called for jury duty were asked to award damages for pain and suffering in a case where the plaintiff suffered a broken leg as a result of complications.^[6] For one set of jurors the cause was described as medical negligence, but for the other jurors the cause was described as a car accident.^[7] When comparing the awards from each set of jurors, there was no statistically significant difference.^[8]

Based on the foregoing research, it is clear that jurors are generally skeptical of personal injury claims and are not likely to be influenced simply because a plaintiff appears sympathetic. Furthermore, juries are not likely to grant a plaintiff a large award simply because they believe that the hospital or doctor can afford to pay the damages.

Myth #2: Juries do not understand the science, so they side with plaintiffs and the guidance of their likeable experts

One common criticism of juries is that, because they are made up of laymen, the members are not always sophisticated enough to understand the science presented by medical experts in medical malpractice cases. Supposedly, this leads jurors to simply side with the party with the most likeable expert, rather than scrutinizing and analyzing the information presented to them. This in turn leads to fear of taking a case to trial, particularly cases involving very complex medicine. However, multiple studies have revealed data that contradicts this view.

One study by Mark I. Taragin, MD, MPH and his colleagues used data from closed claim files of a medical liability insurer.^[9] Medical doctors examined these files and developed opinions on whether or not negligence had occurred. These opinions were then compared to jury verdicts when the case went to trial. In these cases, jury verdicts were very consistent with medical judgments and were not related to the severity of the injury suffered by the plaintiff.^[...