Medical Malpractice and the American Jury: Confronting the Myths about Jury Incompetence, Deep Pockets, and Outrageous Damage Awards, by Neil Vidmar

Reviewed By Mark A. Abramson

All it takes for a plaintiff to win a medical malpractice case before a jury is "a single dissenting voice among [all] surgeons on the stand" because "the sympathies of the jury" always run in favor of the plaintiff. The "sympathy of a jury of citizens is not generally with the doctor, but rather on the side of the poor, ill advised, unfortunate victim of incurable injury." Litigation is forcing doctors to abandon their calling.

Does this sound like the collective howl we all have heard and read from doctors, hospitals and insurance companies? Well, yes it does, but in fact these are statements from physicians and medical editors approximately one hundred fifty years ago, that's right - l847, and it has never stopped.

Professor Neil Vidmar is a professor of social science at Duke Law School and a professor of psychology at Duke University. He has been a long time defender of the jury system, but only after careful and detailed studying. The purpose of his book is to confront "the myths about jury incompetence, deep pockets, and outrageous damage awards." These are myths that we, as practicing lawyers, must address routinely with friends, strangers and others in every forum imaginable from social gatherings to professional seminars to litigation proceedings.

Vidmar moves comfortably in the world of statistics and gives a remarkably clear analysis of much of the data available from medical malpractice lawsuits. Before doing that, he lines up and, in a way, butchers many of the medical 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, that parcels of physicians and judges could do a better job.

Vidmar believes, and to a degree shows, there are very plausible alternative explanations for the public's perception and the medical profession's conviction that juries are over-generous to plaintiffs in law suits. He suggests, convincingly, that plaintiffs' lawyers who have lost "big" are not as keen to add their losses to the statistics as they are with large awards and that the press tends not to report low awards anyway - its not news. He feels those averages are often inflated by one big case and that inflation, itself, is often not considered.

The author comes across as scrupulously honest, but he may give some readers pause when he talks about "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 that refute what others have said.

He finds flaws in the well publicized Rand Corporation's Institute for Civil Justice study that was published in l987, a study that suggested jury profligacy when it showed jury awards had increased over the years and more for medical injuries than automobile or "slip and fall" injuries.

Vidmar's analysis make it clear that juries do not favor claimants over doctors and that any 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, in three decades from l963 to l993, Vidmar found only 265 malpractice cases where such damages were awarded - and where, interestingly enough, 68 percent involved female plaintiffs. Lest readers think that is a sign of undue jury sympathy, Vidmar hastens to point out that many of those cases involved charges of sexual assault.

Professor Vidmar goes to some lengths consolidating studies to test the decisions of juries against the opinion of judges and professional panels of physicians. He starts with the Kalvern Chicago Jury Project in the l950s where the presiding trial judges were later questioned about the jury verdicts in more than 6,000 civil trials. The judges agreed with 79% of the verdicts. In ll% of the cases, the judge favored the defendant, while the jury favored the plaintiff, and in l0% of cases, it was the other way around.

It is difficult to promote the concept that doctors could do better. Vidmar reminds readers of the Farber and White study whose authors studied 252 cases filed against a large self-insured hospital between l977 and l989. The hospital's own internal experts had analyzed the cases during litigation and in over 30% of the situations even they in their legally privileged positions, couldn't agree whether malpractice had occurred. He admits that the range of damages awarded varies enormously from jury to jury and that the average sums granted and discussed hide the incredible variation from one member of a jury to another. He dismisses those anomalies where a jury deviates from legal norms and standards as simply "outlier verdicts", frighteningly small consolation to any defendant who wants his or her day in court.

I was interested, though not surprised, to read that some jury members deferred in deliberations to those who had kept notes or that they would hold blackened out inadmissible evidence to the light to read it.

I believe Neil Vidmar's point that juries in society "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 in them "important civic lessons about rights and responsibilities".

For those of us who are interested in practical insight into the minds of jurors, one l5 page chapter entitled "Malpractice: Behind a $26,000,000.00 Award to a Boy Injured in Surgery" makes the entire book worth the price of admission. The scrutiny which the jurors gave to the physical appearance and dress of the lawyers, right down to the size of their belts, will make you examine your own clothing for stains. More importantly, it was reassuring to read how jurors are willing to accept legitimate and reject baseless claims of doctor negligence, with a clear ability to see through doctors who are professional expert witnesses or who will say anything in defense of one of their colleagues.

Keeping in mind that the material for Vidmar's book is drawn primarily from places less conservative than New Hampshire, it should confirm our sense that the medical negligence system in our state functions extraordinarily well and is in no need of change.

I would recommend the book for anyone who does malpractice work and for all others who have a keen interest in the jury system.