Posted by Bill Sandweg on 27 August 2018.
I look at medical malpractice verdicts from cases throughout the United States. I find the exercise to be frustrating. Most of the time the verdicts are newsworthy because the jury awarded the patient a large amount. Only occasionally do the reports cover those cases in which the doctor or hospital was given a defense verdict. This is the source of much of my frustration as in the great majority of malpractice cases that go to trial, the patient loses. Anyone reading the newspaper or watching the news is going to think that doctors and hospitals are under attack and keep losing big case after big case. That is simply not true.
It is my firm belief that juries try to do the right thing. However, the playing field is not a level one. Defendants have an advantage even before the jurors walk into the courtroom to begin the trial. Why is that?
I find that juries today are generally quite conservative and skeptical about the cases they judge. The insurance industry and big business have done a good job of indoctrinating the public to believe that juries give away too much money. They have had a field day with what is often called “The McDonald’s Coffee Cup Case,” in which a woman received a large jury verdict after she was badly burned by a cup of coffee she had placed in her lap. The case has become the poster child for out-of-control juries and the need for personal responsibility. Those who push this narrative never talk about why the verdict was so high in the first place or how it was reduced greatly after the trial. It is best for these business interests to just show it as an example for jurors of what not to do.
Not satisfied with a real case to use as an example, the insurance industry and big business are likely behind the regularly circulated reports of phony jury verdicts. You have to be a hermit with no internet connection to avoid these chain messages. The phony verdicts they report are intentionally outrageous and cause any rational reader to ask how a jury could ever have done such a thing. Pretty much anyone with any experience in the legal system will immediately smell a rat with these reports but most people take them at face value. Like the endless repetition about the McDonald’s coffee case, these phony reports are intended to create an underlying attitude in every potential juror that things have gone too far and we need to put a halt to people coming to court and looking to get rich. The campaign to sway the jury pool is directed at all types of injury cases. It has been very successful, especially in medical malpractice cases.
Report after report shows that doctors and hospitals win most of the cases that get tried, even when the evidence of malpractice is strong. This is true pretty much across the board in all of the states. If the playing field were level, patients would win most of the cases in which the evidence of malpractice was strong.
Here is one such study done by the medical profession itself. If even the medical profession admits that they win most of the cases, you know it must be true. Furthermore, this study probably understates the hurdles faced by a victim of malpractice as most of the cases studied were prior to 2000 and juror attitudes have only hardened since then. Of course, you will never hear the doctors or the hospitals or their insurers publicly admit the advantages they have in the courtroom. It is much better for them to claim that they are being victimized by an unfair system when, in truth, it is the patients who are being victimized.
Sadly, there is nothing an injured patient can do to change the ingrained attitudes of the general public. Only the malpractice cases with the clearest evidence of medical error coupled with the most serious injuries have a reasonable chance of success in today’s environment. Everyone else must just grin and bear it and that is just the way the insurance industry and the medical profession like it.