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Are Juries Biased Toward Physician Defendants?

Glauser, Jonathan MD, MBA

doi: 10.1097/01.EEM.0000296567.11176.2a
Legal Notes

Dr. Glauser is an assistant professor of medicine at Case Western Reserve University and attending staff faculty in emergency medicine at the Cleveland Clinic Foundation in Cleveland.

Juries are widely believed to be biased against physicians, although there is abundant evidence that patient-plaintiffs lose approximately twice as many cases as they win. Of course, this may simply reflect the poor quality of cases that go to trial, and does not tell us whether the right claims win or even whether a reasonable proportion wins.

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A large study of personal injury cases indicated a 50 percent win rate for plaintiffs. (Ann Rev Law Soc Sci 2005;255:262.) In a 2001 survey, the Bureau of Justice Statistics found a win rate in all tort trials of 52 percent. (www.ojp.usdoj.gov/bjs/pub/pdf/mmtvlc01.pdf) Medical malpractice represents a consistent deviation from these percentages because medical malpractice plaintiffs won roughly 30 percent of their jury trials (Hans V, Vidmar N. Judging the Jury. (1986.) Basic Books, New York), actually falling to 27 percent in 2001 (Mich Law Rev 2007;105:1454) and to 21 percent in a small study from 2006. (N Engl J Med 2006;2024:2030.)

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Low Win Rate for Plaintiffs

Several studies indicate that a large number of claims brought to trial are very weak, in the estimation of the defense insurers. The largest to date examined a study of 976 malpractice verdicts (Ann Intern Med 1992;117:780), in which the reviewers found that 10 percent of claims involved negligent care, 11 percent were too close to call, and 78 percent involved weak claims. The strong claims were outnumbered roughly eight to one. Other studies have shown a 4:1 or 5:1 ratio of weak claims to legitimate ones, in the view of defense insurers.

Why such a high rate of weak cases going to trial? One obvious explanation is that doctors are eager to settle claims for which they were clearly negligent in their own eyes, especially at a discount. Any other cases have to be withdrawn or go to trial. Self-esteem may be another powerful reason for physicians to refuse to settle weak cases, forcing many plaintiffs to drop cases. I have opined elsewhere that avoidance of being named to the National Practitioner Data Bank is a powerful incentive to fight the case, even if the amount of money involved is trivial.

Peters performed an exhaustive investigation correlating verdicts against independent evaluations of each claim by medical and legal experts. (Mich Law Rev 2007;105:1454.) Generally the assessment was made by one or more physicians at the request of the defendant's liability insurer. The results are surprising but consistent. Plaintiffs win about half the time when there is strong evidence of negligence, and 10 percent to 20 percent of the time when there is weak evidence for negligence. Recent data indicate that this figure may be closer to five percent to 10 percent. In Taragin's study, the win rate was even lower: 42 percent when the quality of care was deemed poor. (Ann Intern Med 1992;117:780.)

One factor to consider is inter-rater variability. Physicians who evaluate the quality of care provided by other physicians disagree with one another in about 30 percent of cases. There is frequent uncertainty among physicians as well as regional variation over the appropriate standard of care. (Health Aff 1984;3[2]:74.) Another factor postulated, whether fair or accurate, is that the chart is controlled by prospective defendants, and may present a different picture from the one portrayed by witnesses.

Some experts say juries tend not to grasp complexities, which each side tends to introduce into a case, and therefore the juries side with the doctor. In cases like these, the jury gives the physician the benefit of the doubt that his management was consistent with good medical practice when there is an appearance of legitimate conflict. Case complexity favors defendants, or so say some experts.

Yet others say defendants have better access to resources than do the plaintiffs. Physicians and insurance companies can afford better legal representation, and have wider access to witnesses on their behalf.

In a frequently cited review of 12 jury trials involving anesthesiologists, case reviewers agreed with jury verdicts in only seven of 12 cases. In this study, the plaintiffs won one of four cases (25%) in which the reviewers concluded that no negligence had occurred, yet they won only four of eight cases (50%) in which reviewers found negligence. (Cornell J Law Pub Policy 1997;121:129.) The conclusion could very well be the strong reluctance of juries to find for plaintiffs even with strong evidence.

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Beware What You Wish For

Many health care providers advocate administrative health courts to be adjudicated by judges and generally to deal only with health care issues. These would be presided over by people who know the field as opposed to juries more apt to reward the lawyer who is the best performer. This would be an alternative to rolling the dice with a jury resentful of rich, arrogant doctors, just itching to cut these prima donnas (us) down to size.

In personal injury cases, judges and juries generally agree, or if they disagree, they are generally evenly split between the plaintiff and defendant. (Mich Law Rev 2007;105:1454.) This is not the case with medical malpractice. The Bureau of Justice Statistics indicates that malpractice claimants had considerably more success before judges while juries found for the plaintiff approximately 26 percent to 29 percent of the time in medical malpractice trials. Those data indicated that plaintiffs won 50 percent of their bench trials. (www.ojp.usdoj.gov/bjs/pub/pdf/mmtvlc01.pdf) Judges seems to be much less deferential to doctors than juries are.

There may be truth to this. If juries cannot comprehend all of the evidence and conflicting testimony from experts, the claim has been made that, in case of a tie, they will give the benefit of the doubt to the doctor. In health care courts, few doubt that a presiding judge would not be able to grasp the essential medical issues of a case, and that physician defendants may not fare as well.

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The Bottom Lines

There are data to refute the view that juries are biased in favor of injured plaintiffs and are easily manipulated by plaintiffs' lawyers. The viewpoint from the legal side is that juries favor defendants, at least in medical malpractice.

Malpractice plaintiffs fare better in front of judges than juries. We advocate administrative health courts at our own peril.

Defendants generally have better access to information about the plaintiff's treatment than plaintiffs do (home field advantage).

Next month I will delve further into potential jury bias.

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THE FINER POINTS OF JURY BIAS

▪ Evidence suggests that juries are biased in favor of injured plaintiffs and are easily manipulated by plaintiffs' lawyers, but in medical malpractice cases, juries favor defendants.

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▪ Malpractice plaintiffs fare better in front of judges than juries. We advocate administrative health courts at our own peril.

▪ Defendants generally have better access to information about the plaintiff's treatment than plaintiffs do.

▪ In a 1986 book, medical malpractice plaintiffs won roughly 30 percent of jury trials. That number fell to 27 percent in 2001 and to 21 percent in 2006.

© 2007 Lippincott Williams & Wilkins, Inc.