As a physician with several lawyers in the family, I'm used to seeing legal publications around the house -- and usually, for the sake of my blood pressure, I've learned not to open them.
However, one piqued my interest recently: Medical Malpractice and the American Jury by Neil Vidmar (University of Michigan Press). Vidmar, a professor of social science and law at Duke University School of Law and a professor of psychology at Duke University, gives a remarkably clear analysis of much of the data available from medical malpractice lawsuits. But before doing so, he manages to butcher many of my profession's sacred cows: that juries award excessive amounts for pain and suffering; assess punitive damages without warrant; and find medical malpractice lawsuits too technical to understand -- with the clincher that panels of physicians and judges could do a better job.
Vidmar comes across as scrupulously honest, but he may give some readers pause when he discusses "the problems of anecdotes, unrepresented data, tip-of-the-iceberg statistics, and missing data on jury motives," then -- seemingly selectively -- offers anecdotes and promotes his own studies to refute the conclusions of others.
Vidmar's analyses make it clear that juries do not favor claimants over doctors and that large amounts awarded are mostly for economic losses rather than pain and suffering. He also shows -- and persuasively -- that juries in medical malpractice suits seldom award punitive damages. In fact, from 1963 to 1993, Vidmar found only 265 malpractice cases where such damages were awarded.
He describes the Kalvern Chicago Jury Project of the 1950's where presiding trial judges were questioned about the jury verdicts in more than 6,000 civil trials. the judges agreed with 79% of the verdicts. As a practicing physician, I have to accept it as a wash that in 11% of cases, the judge favored the defendant while the jury favored the plaintiff and in 10% of cases, the opposite was true.
Forget about the concept that reminds readers of the Farber and White study of 252 cases filed against a large self-insured hospital between 1977 and 1989. In over 30% of the situations, the hospital's own internal experts, in their legally privileged positions, couldn't agree whether malpractice had occurred.
Yet, parts of this book bothered me. For instance, Vidmar admits that the range of damages awarded varies enormously from jury to jury. He dismisses those anomalies where a jury deviates form legal norms and standards as simply "outlier verdicts." Scant consolation to any defendant who wants his or her day in court. I was troubled, too, by some examples of jury behavior. For example, in a brain-damaged baby case in a 1986 North Carolina trial that awarded $8 million to the plaintiff, "two (jury members later) mentioned that ultrasound, which was used by their own or their daughter's doctors, was common and should have been used." So much for deciding on the evidence and not on personal experience! I also found it somewhat scary, though not surprising, to read that some jury members deferred in deliberations to those who had kept notes or that they held blacked-out, inadmissible evidence to the light to read it. I also wonder if it is relevant or appropriate that many of the cases that form the basis of the book are from North Carolina, yet the results are extrapolated nationally.
I can see the author's point that juries "provide a check against elitism...inject a measure of community values...impart a sense of legitimacy to the legal process"...and teach those who serve on them "important civic lessons about rights and responsibilities," but I feel, as a member of a profession that constantly seems to be at war with the profession closest to it, that the main point of Medical Malpractice and the American jury lies buried in the last chapter where the author concedes that, "'Tort Reform' is a political struggle in which both sides engage in lobbying and propaganda that contains some elements of real problems, half-truths, and outright distortions."
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