Posted by Bill Sandweg on 25 March 2019.
Here is more evidence, if more evidence is needed, that the medical malpractice system favors doctors. It is in the form of a report published in the Journal of Oral and Maxillofacial Surgery, a publication by and for doctors. The authors looked at the results of malpractice cases involving facial trauma found in a legal database. The cases covered a time span from 1913 to 2016, although most of them went to trial after 1965. The authors also compared outcomes in different parts of the country. Their conclusions were that, of the cases that went to trial, doctors prevailed over 75% of the time. In addition, the courts often dismissed claims against doctors before they ever got to trial, increasing the percentage of cases that ended in favor of the doctors.
As I have remarked before, any review of medical malpractice verdicts must be taken with a couple of grains of salt, especially if the verdict was in favor of the plaintiff. Verdicts in favor of the plaintiff are often challenged and result in the plaintiff receiving less money than the jury awarded.
Furthermore, any review which begins with cases from 1913 is dealing in ancient history. Only cases decided in the last 20 years or so have any predictive value for a case being filed today. Jury attitudes about malpractice cases have changed over the last hundred years just as have public attitudes about almost any other subject you could name.
Furthermore, although this case review limited itself to cases involving facial trauma, the results, in my experience, are pretty much the same regardless of the nature of the injury giving rise to the malpractice suit. Doctors, regardless of specialty, win better than 75% of the cases that go to trial throughout the United States.
Even with the limitations of the case study reported here, it is significant that juries keep finding in favor of doctors and doing so over and over, year after year. Is it just a coincidence? I think not.
I start from the proposition that juries want to do the right thing. They want to be fair. They want to make things right. The problem is that deep down inside they really don’t want to believe that doctors make mistakes that kill and injure people. It is much easier and much more comforting to find that the doctor didn’t do anything wrong. This becomes the filter through which jurors view the evidence presented at trial. It is only the most egregious mistakes that cause the most terrible and lasting injuries that can get juries to face facts and find against the doctor.
To make matters worse, juries have also been bombarded with claims that most medical malpractice cases are frivolous. They are told that doctors cannot afford malpractice insurance. They are told doctors are fleeing the jury’s state because of out-of-control juries who find against doctors. It is suggested to them that, if they want to keep good doctors in their state to take care of them and their families, they had better find for doctors at trial. Lastly, it has become a matter of faith for self-described Republicans that malpractice claims and cases are frivolous and should be limited in various ways.
The result is just what the medical profession and its insurers hoped when they began their campaign to sway the public. Juries got the message and only rarely find in favor of plaintiffs. Now, if they could just do something about those few times when the jury finds in favor of the patient, all would be well in the medical world.