Posted by Bill Sandweg on 11 February 2019.
The first thing to know about large medical malpractice verdicts and settlements is that the data surrounding them is largely unreliable. The reason for this is at least twofold.
With regard to verdicts, the verdict which is reported to the news media is just that, a jury verdict. It often bears little resemblance to the amount the defendant or defendants may ultimately pay. Large jury verdicts are almost always attacked, first in the trial court and then on appeal. In states with malpractice caps on non-economic damages, the court is required to reduce the non-economic damages to the level at which they are capped. Even if there is no cap on damages, in the case of large verdicts, defendants are frequently successful in getting some relief from the trial court. News reports of large jury verdicts are rarely followed by reports about what happened to the verdict during post-trial motions or on appeal.
In post-trial motions, which are directed to the trial judge, the defendants will claim trial court or jury error and request a new trial. The grounds can be many, including error by the trial court in ruling upon evidentiary issues or in instructing the jury, jury misconduct, attorney misconduct, excessive awards not justified by the evidence, and jury awards which were the result of passion or prejudice. Depending on the circumstances, a new trial can be granted on both liability and damages or just on damages. Obviously, if a new trial is granted on all issues, the parties start all over. If granted on damages alone, the new jury will be told that the plaintiffs have prevailed on liability and that its sole function will be to determine the amount of damages.
In addition to moving for a new trial, or alternatively, defendants will argue that the jury verdict was excessive and ask the court to order what is called a remittitur. Should the court agree that the verdict was excessive and grant the remittitur, the judge will decide what she considers to be a fair, lower amount and tell the plaintiffs that if they do not accept the court’s reduction in the verdict, it will grant a new trial to the defendants.
If the court denies the post-trial relief requested by the defendants, they can appeal on all of the grounds raised before the trial court in the post-trial proceedings. In weighing the appeal, the appellate court will give substantial deference to the rulings of the trial court on many matters since the trial judge was in the courtroom and was in a better position that the appeals court judges to evaluate the witnesses and the evidence. The appeals court may deny the appeal and affirm the actions of the trial court, it may reverse the trial court’s decision or, it may affirm in part and reverse in part. Depending on what the appeals court does, the case may return to the trial judge for a new trial or some other action.
When a trial court reduces a verdict or grants a new trial or when an appellate court overturns a large jury verdict in whole or in part, those actions are rarely given the same attention as the original verdict. The public never hears about the change and is left to assume that the large verdict still stands. By way of example, virtually everyone has heard of the McDonald’s coffee cup case in which an older woman suffered severe burns to her genital area when she placed a hot cup of coffee in her lap. Most people correctly believe that the jury gave her a large award. In fact the jury found her total damages to be $2.86 million, which included a punitive damage award of $2.7 million. The jury found the woman to be 20% at fault, so the judge reduced her compensatory award by that amount and further reduced the punitive damages to $480,000. Even after those reductions, McDonald’s appealed the award and, while the matter was on appeal, the parties entered into a confidential settlement for less than $600,000. Very few people know of the post-trial reductions in the amount awarded this woman.
When a medical malpractice case is resolved by way of settlement, the problem of getting an accurate report is complicated by the same thing that happened in the McDonald’s coffee cup case appeal: the settlement is confidential. This is almost always at the request of the defendants, who do not want their dirty laundry aired in public and who do not want to encourage other injured patients to sue.
When you hear about a large verdict or that someone received a big settlement, take the news with two grains of salt. In the first place, the reality may be quite different. Secondly, the medical profession, the insurers and the business community as a whole would like the public to believe that runaway juries are common and that it is the public’s duty to put a stop to this by being very conservative should they ever serve on a jury. Don’t let them fool you.