Monday, July 28, 2008

No need for tort reform -- How about physician discipline?

With my most sincere respect and citation to "TORT DEFORM: The Civil Justice Defense Blog" After taking into account Dr. Vidmar's research study and subsequent testimony to the United States Senate and Illinois Attorney/ABA representative Cheryl Niro's testimony to the United States Senate (Niro and Vidmar testified on 06-22-2006 on Medical Liability: New Ideals for Making the System Work Better for Patients), I have formulated a query.

Every human being has a finite amount of time in each day. And some of those 24 hours are demanded by the responsibilities of an employer, family and sleep. A precious few hours are available for the clinical physician or surgeon to make use of for professional activities. His or her choice in that regard speaks volumes about the character and integrity of the clinician.

Some doctors donate their medical skills to the disadvantaged. Some doctors strive to learn or develop the latest techniques or procedures. And, then some doctors, like Dr. Chris Dangles of Carle Clinic Association in Urbana, Illinois, lobby lawmakers in Washington, D.C. for medical tort reform and advocate for the election of like minded judges.

(You may recall from my first posting when I asked the American Academy of Orthopedic Surgeons, AAOS, for their assistance in disciplining Dr. Dangles since Illinois has no mechanism for discipling doctors. Dr. Chris Dangles testified that I, the patient, talked the surgeon into the surgery and that I fell down after orthopedic surgery because I had an alcohol problem!)

http://www.tortdeform.com/archives/2007/01/_mythbuster_jury_verdicts_cons.html



JURY VERDICTS ARE FAR LOWER THAN COMMONLY BELIEVED.

* The overall median damage award in tort jury trials declined 56 percent from $64,000 in 1992 to $28,000 in 2001, the most recent year studied by the U.S Department of Justice.1 Even according to the over-inflated figures produced by Jury Verdict Research (“JVR”), in 2004, the median jury award for all personal injury cases was only $35,000, compared to $37,086 in 2003, showing a drop of almost six percent, according to JVR.2

* In 2001, the latest year studied by the U.S. Department of Justice, the median final award of $28,000 in tort jury trials did not differ statistically from the median of $23,000 in tort bench trials (decided by a judge).3

* Lawyers Weekly’s “Top Ten Verdicts in 2005” were about half the 2004 totals. In fact, every one of 2005’s Top Ten verdicts was smaller than the verdict in the corresponding position in 2004.4 Moreover, “Six … of the top verdicts this year involved death or severe brain damage caused by extreme corporate and medical negligence.”5

* Products liability. In 2001, the latest year studied by the U.S. Department of Justice, median jury awards in product liability cases was $543,000.6

* Medical malpractice. In 2001, the latest year studied by the U.S. Department of Justice, median jury awards in medical malpractice cases was $431,000.7 According to Duke University Law Professor Neil Vidmar, “the magnitude of jury awards in medical malpractice tort cases positively correlated with the severity of the plaintiffs’ injuries, except that injuries resulting in death tended to result in awards substantially lower than injuries resulting in severe permanent injury, such as quadriplegia. I and two colleagues conducted a study of malpractice verdicts in New York, Florida, and California. We also found that jury awards of prevailing plaintiffs in malpractice cases were correlated with the severity of the injury.”8

* Federal Tort Cases. The estimated median jury damage award in 2002-2003 in U.S. District Courts was $244,000. In personal injury cases, it was less - $200,000.9

CONTRARY TO POPULAR NOTIONS, IT IS DIFFICULT FOR VICTIMS TO WIN TORT CASES BEFORE JURIES.

* In 2001, the most recent year studied by the U.S Department of Justice, plaintiffs won only 50.7 percent of tort cases before juries, compared to 64.7 percent before judges.10

* Products liability. In 2001, the latest year studied by the U.S. Department of Justice, plaintiffs won before judges in product liability trials 50 percent of the time, while only winning 44.7 percent of the time before juries, dropping from 55.7 percent in 1992.11

* Medical malpractice. In 2001, the latest year studied by the U.S. Department of Justice, plaintiffs won before judges 50 percent of the time in 2001, while only winning 26.3 percent of cases before juries, dropping from 30.5 percent in 1992.12

According to the Harvard School of Public Health, patients “rarely won damages at trial, prevailing in only 21 percent of verdicts as compared with 61 percent of claims resolved out of court.”13

* Federal Tort cases. Plaintiffs won more often in front of judges than juries in federal tort trials in 2002-2003 — 54 percent compared to 46 percent of the time.14

JURIES ARE NOT ANTI-BUSINESS OR ANTI-PHYSICIAN; IN FACT, THE OPPOSITE IS TRUE.

* Business cases. Professor Valerie P. Hans, who has studied juries extensively for years, found that jurors “expressed concern about the effect of an award on the business defendant”15 and that “jurors are “often suspicious and ambivalent toward people who bring lawsuits against business corporations.”16

According to Hans, “…[m]ost business litigants in the cases that were part of this study were described in a neutral or positive light. In a minority of cases, jurors levied some harsh comments against particular business defendants, but to the extent that I could determine through interviews, their criticism seemed to be linked largely to trial evidence of business wrongdoing rather than to jurors’ preexisting anti-business hostility. In fact, general attitudes toward business were only modestly related, at best, to judgments of business wrongdoing.17

* Medical Malpractice. Duke University Law professor Neil Vidmar testified, “Interviews with North Carolina jurors who decided medical malpractice cases showed that jurors viewed the plaintiffs’ claims with great skepticism. Jurors expressed their attitudes in two main themes: first, too many people want to get something for nothing, and second, most doctors try to do a good job and should not be blamed for a simple human misjudgment. This does not mean that in every case jurors held these views. Sometimes, evidence of the doctor’s behavior caused jurors to be angry about the negligence. However, even in these latter cases the interviews indicated that the jurors had approached the case with open minds. ”18

JURIES ARE COMPETENT AND ABLE TO HANDLE COMPLEX CASES.

* Consistent empirical studies show juries to be competent, effective, and fair decision makers able to handle complex cases.19

* A March 2000 survey of federal judges by the Dallas Morning News and SMU School of Law found overwhelming support of juries. Over 81 percent of respondents thought that most jurors come into a civil case favoring neither side, with nearly 77 percent believing that juries did very well in reaching a just and fair verdict.20 In addition, 59 percent said they would prefer the dispute to be decided by a jury if they were a litigant in a civil case, with only 21 percent preferring a judge as the decisionmaker. 21

HIGH JURY VERDICTS ARE FREQUENTLY REDUCED AFTER TRIAL.

* According to Lawyers Weekly, “[T]wo of [2006’s] top verdicts involved high-low agreements that limited the amount of money collected by the plaintiff to less than 1 percent of the jury award … Those two settlements speak volumes about the collectibility of massive verdicts.”22

* Medical Malpractice. According to Duke Law professor Neil Vidmar, who has extensively studied jury verdicts, “research evidence indicates that outlier verdicts seldom withstand post verdict proceedings.… Post-trial reductions have been documented in a number of studies. I and two colleagues found that some of the largest malpractice awards in New York ultimately resulted in settlements between five and ten percent of the original jury verdict. A study that I conducted on medical malpractice awards in Pennsylvania and a study of Texas verdicts found similar reductions. … My recent research on medical malpractice verdicts in Illinois found that, on average, final payments to plaintiffs were substantially lower than the jury verdicts. This does not mean that the original verdict was too high. Rather, needing money immediately and wanting to avoid a possibly lengthy appeal process the plaintiffs settled for the health providers’ insurance policy limit. Generally speaking, the larger the award, the greater the reduction in the settlement following trial.23

* In a 1987 study, the Rand Corporation’s Institute for Justice reported, “Most criticism of large jury awards has ignored the fact that the current liability system already has a mechanism for reducing excess awards.”24

NOTES

1 Bureau of Justice Statistics, U.S. Department of Justice, “Tort Trials and Verdicts in Large Counties, 2001” November 2004, NCJ 206240 at 1.

2 Jury Verdict Research, JVR News Release, “Jury Verdict Releases Verdict Survey: National verdict median for personal injury cases in 2004 drops almost 6 percent compared to 2003,” May 26, 2006, found at http://www.juryverdictresearch.com/Press_Room/Press_releases/Verdict_study/verdict_study41.html See, Center for Justice & Democracy, “Flawed Jury Data Masks Trends,” (2002); http://www.centerjd.org/press/release/020322.pdf

3 “Tort Trials and Verdicts in Large Counties, 2001,” U.S. Department of Justice, Bureau of Justice Statistics, NCJ 206240 (November 2004), at 5.

4 Bill Ibelle, “Top Ten Verdicts Of 2005 A Fraction Of The previous Year,” LawyersUSA, Jan. 2, 2007 (http://www.lawyersweeklyusa.com/topten2005.cfm. (comparing 2004 and 2005)

5 Ibid.

6 “Tort Trials and Verdicts in Large Counties, 2001,” U.S. Department of Justice, Bureau of Justice Statistics, 206240 (November 2004), at 7.

7 Ibid. at 7.

8 Testimony of Neil Vidmar, Russell M. Robinson, II Professor of Law, Duke Law School before The Senate Committee on Health, Education, Labor and Pensions, “Hearing on Medical Liability: New Ideas for Making the System Work Better for Patients,” June 22, 2006 at 10.

9 Bureau of Justice Statistics, U. S. Department of Justice, “Federal Tort Trials and Verdicts, 2002—03,” NCJ 208713 (August 2005) at 7.

10 “Tort Trials and Verdicts in Large Counties, 2001,” U.S. Department of Justice, Office of Justice Programs, Bureau of Justice Statistics, NCJ 206240 (November 2004) at 4.

11 Ibid., at 4, 7.

12 Ibid.

13 David M. Studdert, Michelle Mello, et al., “Claims, Errors, and Compensation Payments in Medical Malpractice Litigation,” New England Journal of Medicine, May 11, 2006.

14 Bureau of Justice Statistics, U. S. Department of Justice, “Federal Tort Trials and Verdicts, 2002—03,” NCJ 208713 (August 2005) at 7.

15 Business on Trial: The Civil Jury & Corporate Responsibility, New Haven and London: Yale University Press (2000), p. 23.

16 Ibid. at 216.

17 Ibid. at 217.

18 Testimony of Neil Vidmar, Russell M. Robinson, II Professor of Law, Duke Law School before The Senate Committee on Health, Education, Labor and Pensions, “Hearing on Medical Liability: New Ideas for Making the System Work Better for Patients,” June 22, 2006 at 8.

19 For an extensive list of studies demonstrating the competence of juries, see, e.g., Testimony of Neil Vidmar, Russell M. Robinson, II Professor of Law, Duke Law School before The Senate Committee on Health, Education, Labor and Pensions, “Hearing on Medical Liability: New Ideas for Making the System Work Better for Patients,” June 22, 2006 at 10 (“The overwhelming number of the judges gave the civil jury high marks for competence, diligence, and seriousness, even in complex cases …Systematic studies of jury responses to experts lead to the conclusion that jurors do not automatically defer to experts and that jurors have a basic understanding of the evidence in malpractice and other cases. Jurors understand that the adversary system produces experts espousing opinions consistent with the side that called them to testify. Moreover, jurors carefully scrutinize and compare the testimony of opposing experts. They make their decisions through collective discussions about the evidence.… We also found that jury awards of prevailing plaintiffs in malpractice cases were correlated with the severity of the injury.”)(citations omitted); Peters Jr., Philip G., “Doctors & Juries,” U of Missouri-Columbia School of Law Legal Studies Research Paper No. 2006-33 Available at SSRN: http://ssrn.com/abstract=929474 (“Four important findings emerge from the data. First, negligence matters. Plaintiffs rarely win weak cases. They have more success in toss-up cases, and fare best in cases with strong evidence of medical negligence. Second, jury verdicts are most likely to square with the opinions of experts hired to evaluate the jury's performance when the evidence of provider negligence is weak. This is the very set of cases that most worries critics of malpractice litigation. Juries agree with expert reviewers in 80 to 90 percent of these cases - a better agreement rate than physicians typically have with each other. Third, jury verdicts are much more likely to deviate from the opinion of an expert reviewer when there is strong evidence of negligence. Doctors consistently win about 50 percent of the cases which experts believe the plaintiffs should win. Fourth, the poor success of malpractice plaintiffs in these cases strongly suggests the presence of factors that systematically favor medical defendants in the courtroom. The most promising explanations for that advantage are the defendant's superior resources, the social standing of physicians, social norms against ‘profiting’ from an injury, and the jury's willingness to give physicians the "benefit of the doubt" when the evidence of negligence is conflicting.”) See also, Marc Galanter, “Real World Torts: An Antidote to Anecdote,” 55 Md. L. Rev.1093, 1109, note 45 (1996), citing Michael J. Saks, Small-Group Decision Making and Complex Information Tasks (1981); Robert MacCoun, “Inside the Black Box: What Empirical Research Tells Us About Decisionmaking by Civil Juries,” in Verdict: Assessing the Civil Jury System 137 (Brookings Institution, Robert E. Litan ed., 1993); Christy A. Visher, “Juror Decision Making: The Importance of Evidence,” 11 Law & Hum. Behav. 1 (1987); Richard O. Lempert, “Civil Juries and Complex Cases: Let’s Not Rush to Judgment,” 80 Mich. L. Rev. 68 (1981).

20 Allen Pusey, “Judges Rule In Favor Of Juries; Surveys by Morning News, SMU law school find overwhelming support for citizens' role in court system,” Dallas Morning News, May 7, 2000

21 Ibid.

22 Bill Ibelle, “Top Ten Verdicts Of 2005 A Fraction Of The previous Year,” LawyersUSA, Jan. 2, 2007 (http://www.lawyersweeklyusa.com/topten2005.cfm. (comparing 2004 and 2005)

23 Testimony of Neil Vidmar, Russell M. Robinson, II Professor of Law, Duke Law School before The Senate Committee on Health, Education, Labor and Pensions, “Hearing on Medical Liability: New Ideas for Making the System Work Better for Patients,” June 22, 2006 at 13.

24 Post Trial Adjustments to Jury Awards, Rand Corporation Institute for Civil Justice (1987). (link)

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