In the 50 years I have been practicing law, I have seen the pendulum of jury sentiment sway back and forth. When I began practicing juries were often sympathetic to injured people and willing to hold negligent parties responsible for the harm they caused. Over the last twenty years, however, that has been less true as juries have been skeptical about people suing to recover for personal injuries, especially if the alleged wrongdoer was a doctor or hospital. That may be changing.
Over the last twenty years, if you were a doctor or hospital and a malpractice case against you went to trial pretty much anywhere in the United States, you had an 85-90% chance of winning. That figure is perhaps a little misleading as the doctors, hospitals and their insurance companies usually try to settle their worst cases before trial. That means that the cases that went to trial usually did not include the worst cases in which there would be a high likelihood of a large verdict for the patient. Even then, however, many strong cases against doctors and hospitals went to trial in the last twenty years and the patients in those cases lost.
The long-running success of the doctors and hospitals at trial was no accident. The doctors, the hospitals, their insurance companies, and the business community in general engaged in a campaign to persuade the public that most personal injury claims were exaggerated and that the plaintiffs in those cases were just opportunists looking to get rich. By way of example, you may recall the lists of the most outrageous personal injury suits that made the rounds every year. One such list featured the burglar who, after breaking into the home of some people on vacation, got stuck in the garage where he had to subsist on soda pop and whatever was in the garage refrigerator until the homeowner returned. He was said to have sued the vacationing homeowner and won millions. Obviously, the tort system was out of control and responsible members of the public should be very careful about awarding money to people claiming to be injured. The fact that this burglar and many of the other plaintiffs cited in these lists never existed was hidden from the public. Never let the facts get in the way of a good story.
Medical malpractice cases were singled out for special attention. Not only were plaintiffs in those cases looking to get rich, they and their shyster lawyers were pursuing frivolous cases that were driving medical costs up and were forcing good doctors to leave the practice of medicine. Every couple of years there was a much publicized “malpractice crisis” as insurance companies raised their premiums, allegedly as a result of runaway verdicts and frivolous suits, but actually more the result of losses on their stock market investments. State legislatures were particularly susceptible to lobbying by these groups and passed tough “tort reform” bills to make it even harder for malpractice victims to recover for the injuries they had suffered. Where state constitutions permitted it, legislatures passed limits on the amount an injured patient could receive for pain and suffering.
Well, as the old saying goes, “Nothing lasts forever.” Jurors appear to be more open to compensating people injured by medical malpractice, at least if they are gravely injured. The restrictive “reform” statutes passed by the various states still prevent those who have not suffered a catastrophic injury from being able to recover for their injuries. Malpractice cases are so expensive that only those with significant permanent injuries, big medical bills, and big medical needs going forward can afford to bring cases to trial. As I have discussed in earlier blog posts, big injuries, big medical bills and big medical needs going forward are some of the elements of every big malpractice verdict. Of course, according to the doctors, hospitals and their insurers, the sky is falling – again.
There have been some very large verdicts over the last year or so. Some of the verdicts have exceeded $100 million. These have almost all been cases in which babies were born with terrible injuries that are going to require expensive, lifelong care. According to the insurance companies, the verdicts of 2023 blew away every previous record. The average award of the largest 50 cases in 2023 was far greater than the average in past years. There were more verdicts exceeding $10 million and half of those exceeded $25 million.
The exact reason why is unclear. Some have attributed them to changes in attitude brought about by the Covid pandemic. Some have attributed it to the courts striking down some of the more draconian “tort reform” limitations. On the other hand , this may just be the old pendulum swinging back to a time when injured patients were treated more favorably. Of course, as I have also often discussed, large verdicts rarely stand and, when they are reduced, the fact of the reduction is never given the same breathless publicity as the large verdict engendered in the first place.
Maybe, and it is about time, injured patients are catching a break.
