We recently reported that a jury had exonerated two surgeons in the medical malpractice trial of Notre Dame coach Charles Weis. We’ve had people express surprise at the result given the stereotype that juries run amok in medical malpractice cases.
It’s actually the opposite. As Eric Turkewitz, on his Personal Injury Law Blog, recently noted, "[n]ationwide, approximately 2/3 of all malpractice verdicts favor the defendants. This occurs because, generally speaking, it is usually the most difficult of cases that go to verdict." Indeed, a May 2007 Michigan Law Review Study entitled Doctors & Juries, by Professor Philip J. Peters, referenced by Turkewitz, concludes that juries tend to favor medical defendants in the courtroom. Among the findings summarized in the Study’s abstract:
"Four important findings emerge from the data. First, negligence matters. Plaintiffs rarely win weak cases. They have more success in toss-up cases, and fare best in cases with strong evidence of medical negligence. Second, jury verdicts are most likely to square with the opinions of experts hired to evaluate the jury’s performance when the evidence of provider negligence is weak. This is the very set of cases that most worries critics of malpractice litigation. Juries agree with expert reviewers in 80 to 90 percent of these cases – a better agreement rate than physicians typically have with each other. Third, jury verdicts are much more likely to deviate from the opinion of an expert reviewer when there is strong evidence of negligence. Doctors consistently win about 50 percent of the cases which experts believe the plaintiffs should win. Fourth, the poor success of malpractice plaintiffs in these cases strongly suggests the presence of factors that systematically favor medical defendants in the courtroom. The most promising explanations for that advantage are the defendant’s superior resources, the social standing of physicians, social norms against "profiting" from an injury, and the jury’s willingness to give physicians the "benefit of the doubt" when the evidence of negligence is conflicting. From the perspective of malpractice defendants at least, jury performance is remarkably good."
So next time you hear some tort reform critic complain that the jury system has run amok, point him or her to Professor Peters’ study.
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