The debate over medical malpractice tort reform in Maryland has always been sung to the same tune: “Do we need to limit runaway juries by impeding their ability to award damages they deem appropriate?” The question implies that justice is not being served because juries are (1) wrongly siding against doctors on the question of medical negligence, and (2) awarding more in damages that justice requires. Both the doctors and their insurance companies and the medical malpractice lawyers and victim’s advocates argue their respective points through examples.
In this battle to tell the story that tells the story, the doctors will prevail because they illustrate the easiest of scenarios to latch onto mentally – excessive verdicts. It is hard to extrapolate anything from a zero verdict in a serious medical malpractice case because you would have to determine whether there was negligence. This would take way too much time for Joe Public.
(I do not say this condescendingly; there are lots of societal issues where I am the rather lazy Joe Public myself. We are cannot spend our time getting our minds around every issue of the day. Nor should we. We should, however, all be investing the time to figure out what is going on in Iraqi. Joe Public has not spent time on this issue either, and for this, he deserves scorn. I would continue on but I’m already digressing way more than I normally do or should.)
So what happens if Joe Public extrapolates that a jury gave a $10,000,000 award for injuries that do not sound like they are worth $10,000,000? This $10,000,000 example, one case, proves that juries give excessive awards, and by inference, Joe Public concludes that juries must be prone, for sympathy or whatever reason, to finding against doctors on liability.
There is a genuine lack of honesty from both sides of this debate. Actually, the silliest argument comes from medical malpractice lawyers: “Caps on economic damages do not decrease doctors’ insurance premiums.” I have heard this recited by people a lot smarter than I am. But it is just plain moronic, and it defies the logic of every possible applicable economic principle to believe this to be true. But it is recited and recited again, probably because it resonates with Joe Public better than the more complicated explanation involving justice for a relatively small number of people in situations in which most people never expect to find themselves.
Plaintiffs’ medical malpractice lawyers like to do the whole self-flagellation thing on this issue, saying that medical malpractice lawyers are doing an awful job of “winning the hearts and minds” of Joe Public because they have not been getting out the victims’ stories. But this is not the problem. The problem is the deck is stacked against malpractice lawyers because of the simplicity with which the doctors’ argument can be presented. Jurors can handle nuance because they have taken the time to hear all the facts of a case. The public looks first and last to a few high – and, arguably, excessive – verdicts. If you doubt me on this, look at the effect the McDonald’s verdict by itself – one misunderstood case easy to present in 10 words or fewer – has had on the American public.
With this diatribe out of the way, we move to the purpose of this post. In a recent article in the Michigan Law Journal, Philip Peters, a professor at the University of Missouri – Columbia, looks at these questions by reviewing the empirical data available on this issue.
I do not have time to summarize the studies because I have already spent too much time on this post, but three important findings from these studies emerged. First, the enormous question in every medical malpractice case is negligence. If the case is not strong, the malpractice plaintiff almost invariably loses. If the case is strong, with strong being defined as medical experts agreeing it is strong, it is still an uphill battle for medical malpractice plaintiffs. Second, where the Plaintiff prevails, the jury usually gets it right, with “right” being defined as an agreement between the experts and the jury. In fact, juries are more likely to agree with medical experts than medical experts are to agree with each other. Third, the low success rate of medical malpractice plaintiffs’ cases even when the experts agree with the plaintiff (8% overall in Maryland) underscores that Joe Public’s inference from those few high verdicts is dead wrong: juries favor medical defendants in the courtroom.
There are several reasons for this bias in favor of doctors in medical malpractice cases. The most likely explanations are (1) jurors trust their own doctors, and (2) the dearth of esteemed doctors willing to stand up and testify against other doctors in the same specialty.
The medical malpractice tort reform argument honestly distilled is this: it is best for the overall patient’s health to limit medical malpractice awards because doctors will be more honest about mistakes (or related reasoning that goes to overall patient safety) and/or it will lead to less defensive medicine. (Although if you are treating me, I say practice all the defensive medicine you like. I’ve never fully understood why this is bad.) Even though this might lead to injustice for a few particular plaintiffs who have suffered as the result of the negligence of a doctor, the argument goes, it serves the greater good. I do not agree with this opinion, but at least it is intellectually honest. My guess is that both sides will continue to pander arguments most likely to appeal to the public by applying to the lowest common denominator.