Medical Malpractice and the American Jury: Confronting the Myths About Jury Incompetence, Deep Pockets, and Outrageous Damage Awards.

In the ongoing "tort reform" debate, no subject generates more controversy than medical negligence litigation. The medical industry and its cohorts continually rage about unfairness, unpredictability, capriciousness, and a host of other alleged faults with the justice system.

At the center of the torrent of criticism is the charge that the American jury is the principal villain due to its inherent incompetence, gullibility and "deep pockets" proclivities that result in exorbitant and ever-spiraling rewards. The only solution, according to the critics, is to either severely limit what juries can do--through damage caps or other means--or eliminate juries and turn decision making over to judges.

As a result of these charges, medical negligence litigation has come under close scrutiny, and a rich collection of data has been gathered from researchers across the country.

In an important new book, Neil Vidmar uses that data to systematically analyze each criticism of the jury system in light of the actual evidence of how juries work. Vidmar, a professor of social science and law and a professor of psychology at Duke University, draws on an encyclopedic collection of the work of many researchers and also his own research and experiments. His ultimate verdict is one of vindication for the American jury. He concludes that the claims against the jury system are baseless and that jurors do their job amazingly well.

Writing in a clear style, Vidmar finds the charges against the jury system are based on anecdotes or unrepresentative data and are scientifically unfounded. In an interesting historical footnote, he notes that complaints about medical negligence litigation are nothing new. Complaints similar to those made today were made as early as the 1800s.

Using his own research on North Carolina verdicts, which he validates with other research as probably, typical of verdicts throughout the United States, Vidmar concludes that claims of proplaintiff bias and excessive awards are without merit. Of the cases studied that went to trial, plaintiffs won only one in five, and the awards were rather modest. This undermines two of the harshest criticisms of the jury system--that jurors are biased against doctors and that they are motivated principally by their sympathy for plaintiffs.

A large part of the book is devoted to examining how jurors decide liability. Included in this section is Steve Cohen's fascinating recounting of the jury's decision in the headline New York case of Melis v. Kutin, Harper, & St. Vincent's Medical Center. Cohen, an alternate juror in the case, wrote an article for New York magazine about how the jury reached its verdict. Based on Vidmar's own research as well as the work of many other professionals, he concludes that jurors fairly and intelligently reach reasonable, defensible decisions on medical liability.

On balance, there is no empirical support

for the propositions that juries are

biased against doctors or that they are

prone to ignore legal and medical standards

in order to decide in favor of

plaintiffs with severe injuries. This evidence

in fact indicates that there is reasonable

concordance between jury verdicts

and doctors' ratings of negligence.

On balance, juries may have a slight

bias in favor of doctors.

Equally interesting is Vidmar's examination of damages awards. He finds no evidence to support claims that jury awards are spiraling out of control or are not based on real, justifiable evidence. To test the "deep pockets" hypothesis--that jurors award large verdicts in medical negligence cases because the defendants are wealthy--Vidmar conducted a series of experiments. He found no evidence that medical defendants are treated differently than other defendants. In addition, juror awards against medical defendants proved more reliable and slightly lower than awards by lawyers and judges. Vidmar concluded that damages awards are generally in proportion to the seriousness of the injury and that there is no support for

the widely made claims that jury damage

awards are based on the depth of

defendants' pockets, sympathies for

plaintiffs, caprice, or excessive generosity.

[The data] also yields no support

for the assertions about the proclivities

of juries in handing out punitive

damages. Nor are the findings consistent

with claims that pain and suffering

account for 50 or even 80 percent

of malpractice awards or that judges

can make these awards more reliably

than juries.

Trial lawyers will find the many reports of juror interviews fascinating. Even the most experienced practitioner will learn something from them.

More important, the implications of Vidmar's work for the medical negligence tort reform" debate are profound. The book undermines many of the justifications that have been used to restrict or eliminate medical plaintiffs' rights. While recognizing that some changes could be beneficial, Vidmar cautions that reforms could yield unwanted and dangerous results. He argues that change should be limited and subject to empirical study. Vidmar's conclusions may have implications for other "tort reform" agendas as well. Although the data are based on medical negligence cases, logic would dictate that the findings would not be exclusive to these cases.

Medical Malpractice and the American jury is quite simply the most compelling, comprehensive examination of the American jury system yet written. It brings reason md fact to the debate in a way that puts the he to the many myths surrounding medical negligence cases. For anyone genuinely interested in just solutions, this book should be required reading. To act in ignorance of its findings invites disaster.

Larry S. Stewart, ATLA's immediate past president, is a partner with Stewart, Tilghman, Fox & Bianchi in Miami.