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Legal Notes

The Public's Attitude toward Medicine: Implications for Malpractice

Glauser, Jonathan MD, MBA

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doi: 10.1097/01.EEM.0000296430.78758.6b
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    There may be a perception out there that juries are motivated by distribution of wealth. That is, plaintiffs' attorneys want to try every personal injury case they can in a poor urban center, where the jury is populated by welfare recipients just itching to give lottery-sized awards against rich, stuck-up physicians driving late model BMWs who have been raping the public and driving the amount spent nationally on health care north of 16 percent of the gross national product. Doctors are arrogant, aloof, and just the right types to be shown their place by six to 12 of their peers.

    With this attitude in mind, legislation is pending in both houses of Congress to transfer medical cases from civil juries to administrative health courts. (Fair and Reliable Medical Justice Act, S. 1337, 109th Cong (2005); Medical Liability Procedural Reform Act, H.R. 1546.) I am, in fact, an advocate of health courts, and have published articles in this forum documenting the lack of correlation between jury settlements and what independent experts feel represent actual substandard care.

    I would entrust verdicts and awards to the judgment of people qualified to make these calls. The Institute of Medicine also wants to take malpractice cases away from juries, favoring experimentation with health courts and binding early settlement offers. (www.nap.edu/books/0309087074/html)

    If jurors make irrational, unjust verdicts, then it would follow that malpractice insurers would be justifiably frightened into paying substantial sums to settle frivolous lawsuits because of the dreaded “lottery” of a jury trial.

    Expert theories on opposing sides must be confusing to the lay public. Presumably each side is represented by physicians well versed in their fields. Rather than simply entrust verdicts to the facts, it is expected — by both sides — that juries are expected to fall back on irrelevancies: Is the doctor humble and contrite? Is she arrogant? Does the jury like the physician? In theory, it should be irrelevant if the doctor is even in the courtroom if the case is to be determined solely upon its merits. Why should it matter what the defendant wears to court? Should he lose the Mercedes and lease a used Pontiac for the trial?

    What is True?

    A recent article evaluating jury awards according to merit has noted that negligence matters. Weak cases rarely win, and cases with strong evidence for malpractice do best. In cases with weak evidence for negligence, the agreement between juries and experts is very high. Juries agree with expert reviewers in 80 to 90 percent of cases when the case is weak. This is a higher rate than physicians typically have with each other.

    The agreement rate is much lower in cases with strong evidence for negligence. Doctors consistently win approximately half of cases that experts believe the plaintiffs should win. The consistently low success rate of plaintiffs in cases in which independent expert reviewers feel they should win suggest factors that influence verdicts toward physician defendants. These factors could include better legal representation or simply reluctance of juries to find doctors liable. (Michigan Law Review 2007[5]:1453.) In fact, the implication of this is that juries are more likely to defer to the judgment of a physician defendant than other physicians are.

    Why Are Juries Sympathetic?

    The health care industry in this country has a pretty good record of going to bat for the medical rights of all people in general, even setting EMTALA aside for the time being. After the 1870s, Jim Crow laws ushered in a period of discriminatory health care through separate hospitals, separate medical and nursing schools, and separate professional medical societies. The 1946 Hill-Burton Act allowed “separate but equal” hospital facilities.

    In 1963, this was overturned in the seminal case of Simkins vs. Moses H. Cone Memorial Hospital. Then Title VI of the Civil Rights Act of 1964 prohibited discrimination on the basis of race, color, or national origin by programs and activities that receive federal financial assistance. (Rosenblatt RE, et al. Law and the American Healthcare System. Westbury, NY: The Foundation Press, 1997.) The following year, the Medicare and Medicaid programs were enacted, amplifying the act's importance because health care providers receiving federal Medicare dollars were required to comply with Title VI. Essentially, hospital-based racial segregation was ended. (Ethnicity and Disease 2005[15]:S2.)

    Later in the 1960s, the war on poverty led to affordable health care for low-income families in underserved rural and urban communities. All of these factors made health care more egalitarian, and almost certainly deflected much resentment from juries which otherwise might be more hostile to the medical community. The arguments that physician societies make — pediatricians saying that keeping a gun in your home is dangerous to children or the American Cancer Society's campaign against smoking, for example — may have political overtones, but can be defended as protecting the public at large. There clearly is a wellspring of goodwill that the health care provider can draw on in court.

    Notwithstanding the belief that juries are biased against physicians, patients lose twice as many malpractice verdicts as they win. This does not necessarily mean that jurors favor doctors over injured claimants, especially if weak claims dominate the mix of cases going to trial. The poor quality of cases that go to trial would suggest that a mere 50–50 split of verdicts should not occur. The low win rate for plaintiffs does not in and of itself mean that the system is biased in favor of physician opponents. Other factors may account for why doctors win most jury verdicts. (Michigan Law Review 2007[5]:1453.)

    The Bottom Lines

    There is evidence that juries present a more favorable atmosphere for doctors than health courts might. (Beware of what you wish for; you might just get it.) Even if one concedes that the current system is biased toward physician defendants, medicine may still wish to do away with it; there is too much left to subjectivity.

    Trial attorney associations should police those members who go for (and frequently obtain) huge verdicts. Massive jury awards make the system look uneven, unpredictable, and unsustainable. They become poster children for an overhaul of the entire system. One massive award can generate enough publicity to override what logic and hard science tells us about jury verdicts. It is certain that isolated “obscene” verdicts damage personal injury attorneys as a whole in the long run.

    THE FINER POINTS OF JURY AWARDS

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    • Negligence matters. Weak cases rarely win, and cases with strong evidence do best.
    • In cases with weak evidence for negligence, juries and experts agree in 80 to 90 percent of cases, higher than physicians typically do with each other.
    • The agreement rate is much lower in cases with strong evidence for negligence. Doctors win about half of cases that experts believe the plaintiffs should win.
    • Plaintiffs' low success rates in cases in which experts feel they should win suggest factors that bias verdicts toward physician defendants.

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