Medical Negligence, the Litigation Process and Jury Verdicts in Medical Malpractice Cases: Implications for Indiana

Neil Vidmar, Ph.D.
December 2, 2002

This report reflects the author's professional opinions and does not necessarily represent the opinions or positions of the organizations that have supported his academic research: The Robert Wood Johnson Foundation, The State Justice Institute, The National Science Foundation, the American Bar Foundation and Duke University.

Purpose of This Report

The author, Neil Vidmar, was asked to prepare this report by legal counsel for the plaintiffs in James Eldridge and Paula Eldridge v. Leighton C. Johnson, Jr., M.D., Marion Superior Court, Cause No. :49D109912 CP001798. The author understands that the purpose of the report is related to the plaintiff's challenge to the constitutionality of the cap on damages in Indiana's Medical Malpractice Act. The author received remuneration for preparing this report.

The Background of the Author of this Report

Neil Vidmar, Ph.D., is Russell M. Robinson II Professor of Law at Duke Law School. He also holds the position of Professor of Psychology. He earned his Ph.D. in social psychology (University of Illinois, Urbana,1967) and has been studying medical malpractice litigation in the United States since 1986. He is the author of Medical Malpractice and the American Jury: Confronting the Myths about Jury Incompetence, Deep Pockets and Outrageous Damage Awards (University of Michigan Press, 1995) and various law review and social science articles on medical malpractice. He has also published research on other aspects of the tort system. He is currently engaged in a ground-breaking project with his co-investigator, Professor Shari Diamond, that has videotaped the actual deliberations of fifty civil juries in Arizona with the intent of examining juror performance. Some of the trials in the Arizona study involve medical malpractice claims, and, combined with previous research, provide a unique window into the behavior of malpractice juries. These various research endeavors were undertaken for neutral academic purposes rather for litigation. The projects were sponsored, in part, by the Robert Wood Johnson Foundation, the State Justice Institute, the National Science Foundation, Duke Law School and the American Bar Foundation, but the conclusions do not necessarily represent the views or positions of those institutions. Vidmar occasionally engages in private consulting, and in civil cases his clients are divided about evenly between plaintiffs and defendants. He has consulted on behalf on medical malpractice defendants as well as of plaintiffs.

Table of Contents

I. Introduction and Purpose of this Report 1
A. Debate About Medical Malpractice 1
B. Systematic Research on Medical Malpractice. 2

II. Jury Verdicts in Malpractice Cases in Indiana 2

A. Indiana Jury Verdict Reporter Data 3
B. Bureau of Justice Statistics Data 4
C. Implications of the Verdict Data 4

III. Data on Medical Malpractice Verdicts in Other States 5

IV. The Incidence and Costs of Medical Negligence 9

A. Medical Injury Due to Negligence Is Not Infrequent 10

B. Injuries Have High Costs 12

V. The Incidence of Claims Is Much Lower Than the Incidence of Injury 14

A. Valid Claims Versus Invalid Claims 14

B. There are Multiple Explanations for the Low Claiming Rate Following Medical Malpractice 15

VI. Juries Tend to Be Competent and Conservative 17

A. Jurors Tend to View Plaintiff Claims With Skepticism 17

B. Jury Verdicts Tend to Be Consistent With Judgments of Neutral Medical Experts 18

C. Judges Agree With Jury Verdicts 19

D. There Is No Evidence Supporting Claims of a "Deep Pockets" Effect 19

E. There is Little Evidence To Support a Claim that Juries Are "Overwhelmed" By Plaintiff's Experts 20

F. Jury Damage Awards Tend to Be Moderate and Correlate With Severity of Injury 21

G. The "Pain and Suffering" Component of Awards Is Mis-characterized and Mis-understood 22

VII. Outlier Awards tend To Not Withstand Post-Verdict Adjustments 24

VIII. Injured Claimants Often Receive Less Than Actual Economic Losses. 27

IX. Frivolous Litigation. 28

A. Liability Insurers Do Not Settle Frivolous Cases 28

B. Cases Dropped by Claimants Before Trial Are Not Necessarily Frivolous 28

C. Doctor's High "Win Rates"at Trial Do Not Mean the Lawsuit Was Frivolous 29

X. Conclusions 30

I. Introduction and Purpose of this Report

I was asked by legal counsel for the plaintiffs to make an assessment of Indiana jury verdicts in medical negligence cases and to compare Indiana with other United States jurisdictions. In addition I was asked to draw upon my professional knowledge to offer opinions about medical negligence litigation including the following issues: the extent to which injured patients pursue claims against health care providers; the processes by which juries reach their verdicts regarding both liability and damages; the extent to which medical negligence awards are adjusted following verdicts; and claims about frivolous litigation. It is my understanding that my opinions may be used in litigation challenging the constitutionality of Indiana cap on medical negligence jury awards and that I will be asked to testify about my opinions under oath.

A. Debate About Medical Malpractice

Legal professionals, legislators and the public in general often receive a distorted picture of medical negligence litigation based on selective reporting of cases by the mass media⁽¹⁾ and by propaganda efforts of groups advocating changes to American tort laws.⁽²⁾ These groups argue that juries are prone to be incompetent to decide liability, are biased against doctors, often give unwarranted large awards based on sympathy for injured plaintiffs and frequently produce outrageous "outlier" awards. These tendencies, moreover, are alleged to have an effect on the settlement process by increasing the amounts that insurers have to pay to settle lawsuits, and they also increase frivolous litigation by encouraging plaintiffs looking for an undeserved windfall.⁽³⁾

The claim of frivolous litigation will be addressed later in this report, but it is important to immediately address the issue of "outlier" awards. The definition of an outlier award involves a subjective judgment that can produce disagreement between persons. A $5 million award to a college professor suffering an injured leg causing a limp might garner general agreement that the award is out of proportion to the injury. A $5 million award to a basketball player suffering the same injury who has just finished the first year of a six-year contact worth $1 million per year might be judged a reasonable award, based simply on the loss of income. But other examples will engender disagreement. Is, for example, a $5 million award too much or too little in the case of a child suffering severe mental retardation? Plaintiffs and defendants and their economic experts can have sharp disagreements about whether $5 million is sufficient to take care of that child for the rest of its natural life. Indeed, depending on the circumstances some experts might justifiably argue that a $10 million award is not sufficient. Recognizing the subjectivity of the definition of an "outlier" award, for purposes of discussion this report will arbitrarily make reference to two classes of potential "outlier" awards. Awards equal to or greater than $5 million will be classified as Class B outliers and those equal to or above $10 million will be classified as Class A outliers. In making these classifications the report does not take the position that the award was unjustified, only that it raises grounds for legitimate scrutiny and possible disagreement. The Report will also identify the number of Indiana jury verdicts that exceed the Indiana statutory cap of $750,000.

B. Systematic Research on Medical Malpractice

Over the past two decades social scientists and economists have collected systematic data about jury verdicts, the behavior and reasoning of the juries that render those verdicts, and other aspects of the litigation process that contradict widely held views about the civil justice system. In this report I draw upon specific data bearing on Indiana and place them in the context of those other research findings about medical malpractice and the litigation process. The research contradicts the claims that are being made in the current nationwide malpractice debate and bear on the likelihood that removing the caps imposed by the Indiana medical malpractice statute will result in an excess of large and unjustified jury awards in medical negligence cases and consequent frivolous litigation.

II. Jury Verdicts in Malpractice Cases in Indiana

A. Indiana Jury Verdict Reporter Data

The Indiana Jury Verdict Reporter, now in its third annual volume, has comprehensively reported jury verdicts in Indiana since the year 2000.⁽⁴⁾ A search of that reporter for medical malpractice verdicts yielded the data that cover the complete years of 2000 and 2001; the year 2002 is covered through September 2002.⁽⁵⁾ Appendix A reports by year the title of the case, its date of verdict and the amount awarded, if any. The data contained in Appendix A are summarized in the following three paragraphs.

In the year 2000 there were 37 medical malpractice trials, and plaintiffs prevailed in 14, yielding a plaintiff win rate of 37.8 %. The median award (middle of the distribution) for prevailing plaintiffs was $421,775 and the mean (average) award was $672,139.⁽⁶⁾ There were three awards that equaled or exceeded the $750,000 Indiana cap. In Ballard the jury awarded $3,500,000; in Parker the jury awarded $1,285,000 and in Lohman the jury awarded $1,000,000.⁽⁷⁾

In the year 2001 there were 30 jury trials, with the plaintiff prevailing in 13 for a win rate of 43.3%. The median award was $200,000 and the mean award was $613,258.⁽⁸⁾ There were three awards exceeding the $750,000 cap: in Sosh the plaintiff was awarded $3,567,000; in Glock the award was $1,052,461; in McDaniel, the award was $920,000 and in Kousardi the award was $850,000.⁽⁹⁾ In the first nine months of 2002, excluding the $3,899,731 award in the Eldridge case, the data show that there were 18 medical malpractice trials with the plaintiff prevailing in 6. By including Eldridge there were 19 trials with seven plaintiffs prevailing, yielding a win rate of 36.8%. The median award was $400,000 and the mean award was $ 1,336,789. In addition to Eldridge there one other "million dollar" award, Mustafa, a case in federal court involving the death of a 13-year old boy from a intra-cranial bleeding, resulted in a verdict of $1,500,000.⁽¹⁰⁾ No other cases exceed the Indiana cap.

B. Bureau of Justice Statistics Data

The United States Bureau of Justice Statistics conducted a 1996 survey of state court jury verdicts in the 75 largest counties in the United States.⁽¹¹⁾ Marion County, Indiana is one of the included counties. I obtained the data for Marion County and found five medical malpractice cases. Plaintiffs prevailed in four of the cases yielding awards of $650,000; $260,000, $235,000 and $100,000. Adjusting the largest award of $650,000 to 2002 dollars by the Consumer Price Index yields the largest award in 1996 to be $734,500.

C. Implications of the Verdict Data

The verdict data regarding cases above the cap or cases below the cap do not speak to the "correctness"of the verdicts with regard to liability or to the amount of the award. Nevertheless, the important finding is that relatively few jury awards exceed the $750,000 Indiana cap. As will be discussed below, the plaintiff win rate in Indiana exceeds the win rates in other states that range between approximately 20 percent to 30 percent. However, this difference may be a result of the screening out of cases due to medical review panels and other elements unique to Indiana medical malpractice tort law.⁽¹²⁾ A definitive answer cannot be ascertained as to why Indiana's plaintiff win rate is higher than national averages, but the bottom line with respect to the cap is the number of verdicts that exceed the cap. The largest of the jury awards, $3,567,000 in Sosh and $3,899,731 in Eldridge fall short of Class B outliers. In the two and three-quarter years covered in this survey, eight verdicts exceeded the Indiana cap.

III. Data on Medical Malpractice Verdicts in Other States

A concern about the effects of removing the cap is that jury awards may increase if the caps are removed. This concern may be heightened as a result of the 2002 medical malpractice liability insurance crisis in which rates have increased substantially in many states and health care providers are allegedly unable to obtain insurance.⁽¹³⁾ Many sources have blamed the tort system, particularly juries, as the primary cause of the crisis⁽¹⁴⁾ while ignoring a plausible alternative explanation that the crisis is caused by a complex interplay of factors relating to insurer business decisions and the stock market downturn.⁽¹⁵⁾

While it is not the purpose of this report to address the above debate, it is important to report data and conclusions from systematic research in other jurisdictions that contradicts the claims of jury misbehavior and malfeasance that have arisen from this ongoing controversy.

Consider the state of Mississippi. Various groups and national newspaper articles have described Mississippi as the "tort capital of the United States."⁽¹⁶⁾ Mississippi has had no cap on jury awards.⁽¹⁷⁾ The behavior of juries in medical malpractice cases have been directly linked to this claim. However, my own research, using the precise data sources from one of the groups advocating medical malpractice tort reform plus other data sources has demonstrated that since 1995 there has been, on average, only 1.1 jury verdicts per year in Mississippi that equaled or exceeded $1 million.⁽¹⁸⁾ Two of these awards were Class B "outliers": $6.2 million and $5 million, and one was a Class A outlier of $23 million. However, the $23 million award, which involved severe brain damage to an infant and allegations that hospital staff altered records was settled for an undisclosed sum substantially less than the original verdict.⁽¹⁹⁾ No evidence was available regarding settlements in the other two cases. Additional analyses of cases reviewed by Mississippi appellate courts demonstrated that the courts were heavily engaged in pretrial and post-trial screening of medical malpractice litigation processes. In short, whatever the validity of claims about the problems associated with Mississippi's tort system in general, the data do not support the extravagant claims regarding Mississippi medical malpractice litigation even when the "outlier" verdicts are considered.

Similar claims to those made about medical malpractice in Mississippi have been made about the state of Ohio. Merritt and Barry conducted a study of medical malpractice jury outcomes in Franklin County, Ohio between 1985 and 1996.⁽²⁰⁾ They found only eight verdicts exceeding $800,000 in this time period⁽²¹⁾ and many of these verdicts were settled for less than the original verdict.⁽²²⁾ There was one Class A outlier award of $12 million that was reduced by the trial judge to $8,150,000. Merritt and Barry also addressed claims of rising verdicts over the time period they studied. They concluded as follows:

"Thus, trends in both recovery rates and verdict size dramatically favored defendants during the years immediately preceding reform. Rather than

signaling a crisis in the tort system, these trends suggest a rapid decline in plaintiff's recoveries in medical malpractice cases.⁽²³⁾

Georgia is another state where claims were made about extravagant juries in medical malpractice cases. Eaton and Talarico systematically examined jury outcomes in tort cases in four diverse Georgia counties over four years, ending in December 1993 and supplemented those data with data collected by the U.S. Bureau of Justice Statistics.⁽²⁴⁾ In Fulton County (Atlanta), for example, plaintiffs prevailed in only one of nine cases⁽²⁵⁾ and that award was for $2,125,000.⁽²⁶⁾ The median jury award for all medical malpractice cases in their sample was $201,000.⁽²⁷⁾

For North Carolina I collected data on medical malpractice verdicts occurring between 1984 and 1990.⁽²⁸⁾ Of 109 jury trials plaintiffs prevailed only about 21 percent of the time. There were three awards that equaled or exceeded $1 million: $1.28; $1 million; and $3.5 million. There was also an award for $750,000.⁽²⁹⁾ I also compared plaintiff win rates from various studies around the country and found the rates ranging from 20 percent to a high of 43 percent.⁽³⁰⁾

The U.S. Department of Justice's Bureau of Justice Statistics study of the largest 75 counties in the U.S. identified 1112 medical malpractice jury trials in state courts. Plaintiffs won in 23 percent of them.⁽³¹⁾ The median award for winning plaintiffs was $254,000; 50 percent of the awards exceeded $250,000 and 22.1% of awards exceeded $1 million.⁽³²⁾

The above research findings obscure the fact there are some states with higher awards. In a study that I conducted on Pennsylvania using various data sources, including data from the Pennsylvania CAT Fund files.⁽³³⁾ I concluded that doctors prevailed in 67 percent to 70 percent of trials. The mean plaintiff award for winning plaintiffs in the year 2000 was $5,664,644 and the median verdict was $1,200,000. In 2001 the mean verdict was $2,620,000 and the median was $872,000.⁽³⁴⁾ Although the data showed that many of the largest awards were reduced after the verdict, Pennsylvania verdicts appear substantially higher than the national average.⁽³⁵⁾

In a study of medical malpractice verdicts in New York City and surrounding counties and the states of Florida and California⁽³⁶⁾ jury awards in medical malpractice cases were higher than the national average. For example in New York cases decided between 1985 through 1997 the plaintiffs won in 52 percent of trials, the mean award for winning plaintiffs was $ 4,383,667 and the median was $1,211,850.⁽³⁷⁾ In Florida plaintiffs won 44 percent of the time; the mean verdict was $1,250,000 and the median was $390,000.⁽³⁸⁾ In California plaintiffs won 22.5 percent of the time; the mean award was $1,720,000 and the median was $344,250.⁽³⁹⁾ The data for all three states reflect a large number of Class A and B outlier awards.⁽⁴⁰⁾ As will be reported in a following section, those outlier awards tended to be reduced, sometimes by 90 percent or more, in post trial settlement or judicial processes.⁽⁴¹⁾

It must be emphasized that differences in win rates and mean and median awards can be deceptive because of differing litigation patterns and post-trial adjustment processes across jurisdictions.⁽⁴²⁾ Nevertheless, on their surface the data show that claims about jury awards need to be checked against actual data regarding frequency, verdict amounts and the final amounts awarded to the plaintiffs. In some states that are reviewed in this section the juries show a number of large awards. In other states the awards exceed the national average by a substantial amount. Considering only awards over $1 million Indiana juries appear to be more similar to Ohio, Georgia, and North Carolina, and perhaps also to Mississippi, than to New York, Pennsylvania, Florida and California. Indiana had no Class A or B "outlier" verdicts.

IV. The Incidence and Costs of Medical Negligence

Sometimes explicitly, but more often tacitly, debates about medical malpractice contain the arguments that medical negligence is relatively infrequent⁽⁴³⁾ and that injuries and the consequent financial losses of patients are exaggerated. The incidence of injuries and their costs to patients have implications for both jury awards and claims about frivolous litigation. Thus, these matters need to be addressed before turning to a discussion of jury behavior and the litigation process.

A. Medical Injury Due to Negligence Is Not Infrequent

The Harvard study of medical negligence examined hospital records of 31,000 patients and concluded that one out of every 100 patients admitted to hospital had an actionable legal claim based on negligence.⁽⁴⁴⁾ Some of these patients' injuries were minor or transient, but 14 percent of the time the adverse event resulted in death and 10 percent of the time the incident resulted in hospitalization for more than six months, with seven of those ten persons suffering a permanent disability. Generally, the more serious the injury the more likely it was caused by negligence.⁽⁴⁵⁾ Subsequent research involving the states of Utah and Colorado found rates of negligent adverse events that were similar to the New York findings.⁽⁴⁶⁾ In 2000 The Institute of Medicine produced a report that relies on these data and cites other data consistent with the above findings.⁽⁴⁷⁾

These findings are consistent with earlier research reported by Danzon who estimated that on average one in twenty hospital patients incurred an injury due to medical error.⁽⁴⁸⁾ A still earlier study in California estimated that compensable injuries due to negligence occurred in one in 125 hospitalizations.⁽⁴⁹⁾

There are good reasons to believe that the Harvard study may have underestimated the incidence on medical negligence. For example, Lori Andrews conducted a study in a large Chicago area hospital.⁽⁵⁰⁾ The Harvard data were based on hospital records. Andrews, however,

studied actual incidence of negligent events in hospital wards and discovered that many injuries were not recorded on the records as required, especially when the main person responsible for the error was a senior physician. Other research is consistent with the Andrews findings. For example, Dr. Thomas Julian had a panel of obstetricians review obstetric malpractice claims and concluded that "common obstetrical risks were often not recognized or not recorded in medical records."⁽⁵¹⁾ There is additional research consistent with the above findings.⁽⁵²⁾

Thus, findings from highly regarded sources show that medical negligence not only occurs, but it occurs at a substantial rate. As a result, substantial numbers of patients die and others are seriously injured. It is noteworthy to observe one other finding from the Harvard study. Those researchers which also interviewed a sample of physicians. The authors concluded that while many of the doctors conceded that patients are injured by medical accidents, they would not readily concede that negligence was the cause.⁽⁵³⁾

B. Injuries Have High Costs

One only needs to consider an example or two in order to appreciate the cost of a serious injury. A woman in her forties, divorced, with two dependent children, enters a hospital with a high fever. A feeding tube was improperly inserted into her lung, necessitating partial removal of the lung. In the recovery room bleeding from the surgery was discovered and she was rushed back to the operating room where another tube was improperly inserted in her other lung. The woman is paralyzed from the chest down and will have to spend the rest of her life in a nursing home. What will be the cost of her medical care and lost income for the next three or more decades? As a second example, what is the cost associated with a child born blind, deaf, retarded and requiring constant attention to avoid bed sores and other illnesses, especially when experts predict that she could live for decades?⁽⁵⁴⁾ In a country without universal health care the medical costs must often be born by the plaintiff's family. And in the case of a patient who was the major wage earner, who is to replace that lost income?

More than a dozen years ago Sloan and van Wert, two economists, conducted systematic assessments of economic losses in a sample of Florida cases involving claims of medical negligence occurring as a result of birth-related and emergency room incidents.⁽⁵⁵⁾ Even though those researchers offered the caution that their assessment procedures probably underestimated losses,⁽⁵⁶⁾ severely injured parties' economic losses were, on average, between $1.4 and $1.6 million in 1989 dollars. If we adjust for inflation using the consumer price index⁽⁵⁷⁾ these figures in 2001 dollars translate to $2.0 million and $2.3 million, respectively. The losses of persons who survived an emergency room incident were estimated at $1.3 million⁽⁵⁸⁾ or $1.86 million in 2001 dollars. For persons who died in an emergency room incident the loss to their survivors was estimated at $0.5 million,⁽⁵⁹⁾ or $0.7 in today's dollars. Moreover, there was considerable variability around the means of these estimates: some patients had much higher economic losses.⁽⁶⁰⁾

Sloan and van Wert cautioned that a major share of past losses was covered by collateral sources.⁽⁶¹⁾ However, even if future medical expenses, including nursing care, are covered by collateral sources, and this is not guaranteed by any means, loss of income and other expenses, such as care giving by family members resulting in diminished income from those family members, will not be covered. Sloan and van Wert's estimates, moreover, did not consider non-economic losses, such as pain and suffering or loss of consortium. Very significantly their estimates of loss also did not consider the transaction costs that plaintiffs incurred to receive any trial award or settlement before trial, a topic that will be discussed in more detail below.

The Harvard study of medical malpractice in New York also documented the high costs of negligent injuries.⁽⁶²⁾

In their study of the Indiana Medical Malpractice Act Kinney, Gronfein and Gannon reported anecdotal data bearing on the economic losses incurred by some patients injured by

medical malpractice.⁽⁶³⁾ A 43 -year-old woman who lost function in her left arm and both legs and both bladder and bowel control during an operation in 1981 and was consequently confined to a nursing home was eventually awarded an annuity of $400,000 in 1987. After litigation expenses, lawyer fees and Medic Aid liens the woman reported that the remaining balance would not cover her nursing home expenses for one year.

V. The Incidence of Claims Is Much Lower Than the Incidence of Injury

A. Valid Claims Versus Invalid Claims

One of the most striking findings of the Harvard medical malpractice project is that eight times as many patients suffered from a medical negligence injury as filed a claim.⁽⁶⁴⁾ Put in different words, for every seven patients who suffered a negligent injury, one claim was filed"⁽⁶⁵⁾ However, claims were also filed in cases in which the research team of health care providers concluded that there was no negligence. However, the ratio of invalid claims to valid claims that went unfiled was approximately one to seven. That is, for every doctor or hospital charged with an invalid claim there were seven valid claims that were not filed.⁽⁶⁶⁾ Danzon's earlier research, using a data base from California, concluded that "at most one in 10 negligent injuries resulted in a claim."⁽⁶⁷⁾ Similarly, Andrews study of errors in the hospital that she studied found that of 1047 patients experiencing a medical error only 13 patients made a claim.⁽⁶⁸⁾

Sloan and Hsieh studied medical malpractice claims in Florida involving injuries during childbirth that resulted in death or permanent injury.⁽⁶⁹⁾ The families of the child were interviewed and the data were supplemented by an independent medical review of the records by physicians. Cases in which the physicians concluded that negligence was involved were much more likely to become claims. More serious injuries were more likely to become claims than less serious injuries. Those authors concluded that of 963 women giving birth in Florida in 1987 who were surveyed 220 had experienced a negative birth outcome. The high incidence rate was a result of intentional over-sampling for purposes of the study. Of the 220 cases 23 persons sought legal advice but not a single suit was filed in any of the 220 cases. The researchers observed that injuries associated with greater severity were more likely to cause the parties to make a claim, but:

The lack of claimants among the 220 women whose babies had serious birth injuries and the failure of the 23 women to obtain [legal] representation runs counter to the "conventional wisdom" that patients sue when they obtain less than a "perfect result."In fact, lawyers filter out many potential claims that injury victims might lose.⁽⁷⁰⁾

B. There are Multiple Explanations for the Low Claiming Rate Following Medical Malpractice

Legal Scholars and social scientists have invested considerable amounts of effort in attempting to understand why people make claims or fail to make claims and the general processes of "disputing".⁽⁷¹⁾ Claims that end up in court are only the tip of an iceberg. At the base of the iceberg are negligent injuries. A fraction of the injuries result in grievances and a fraction of grievances result in claims. Some of these claims settled but others result in disputes. Of the disputes a number are eventually settled but others result in lawsuits, a large proportion of which

are settled. The remaining fraction, sometimes as few as one to 10 percent end up being adjudicated by a judge or jury. This filtering process is depicted in two sets of figures attached to this report as Appendix B.

With respect to medical negligence, one of the reasons for the failure to claim is that the injured party does not discover that negligence is the cause of the injury. Andrews found that some physicians did not include errors in the hospital records because they wanted to avoid any chance of litigation.⁽⁷²⁾ After all, since patients have an illness that caused them to see treatment, it is easy for them to believe that an injury is a natural or iatrogenic outcome of the treatment.

Other research indicates that despite the cultural myth that Americans will sue at the drop of a hat that in fact many are reluctant to do so, because of widely shared beliefs that it is improper to do so.⁽⁷³⁾ This tendency to avoid disputing is especially true in medical cases, especially when doctors apologize or express sympathy for an adverse outcome and the injury is not too serious.⁽⁷⁴⁾

Even for patients who believe they have been injured by a health care provider and want to file a lawsuit, there is difficulty in finding a lawyer. The Sloan and Hsieh research, discussed above,⁽⁷⁵⁾ showed that of 23 potential claimants who sought legal advice none found a lawyer willing to take their case. Research by Herbert Kritzer has examined the decisions of plaintiff lawyers to take or decline cases⁽⁷⁶⁾ and the issues are also discussed in my book on medical malpractice.⁽⁷⁷⁾ Since most plaintiff lawyers work on a contingency fee basis their own money is at stake in the case. The time and money for experts in order to litigate malpractice claims is much greater than in many other types of cases. Therefore, they carefully screen cases and weed out those that have low damages or that have a low potential of recovery due to the facts of the case or the low likelihood of prevailing on liability for whatever reasons, including "low jury appeal." In even ordinary cases lawyers may decline as many as nine cases in ten; in medical malpractice cases the proportion of declined cases may be even higher.

In short, the inability of patients to realize they have been victims of malpractice, cultural and personality factors and inability to obtain legal representation account for the low rates of claiming behavior in cases of medical negligence. Patients who do file lawsuits are more likely to have suffered a serious injury and have a reasonable likelihood of prevailing on liability and demonstrating serious economic damages.

VI. Juries Tend to Be Competent and Conservative

The data reported earlier in this report lend no support to fears that Indiana juries are prone to render large, unwarranted damage awards to plaintiffs in medical malpractice cases. Nevertheless, it is important to review what research on malpractice juries has discovered over the past two decades because many myths about them continue to be held by legal professionals as well as by legislators and by the general public.

A. Jurors Tend to View Plaintiff Claims With Skepticism

The assertion that jurors decide cases out of sympathy for injured plaintiffs rather than the legal merits of the case is one of the most persistent claims of opponents of civil jury trial.⁽⁷⁸⁾ Such claims have been made about malpractice juries in the United States since at least the nineteenth century.⁽⁷⁹⁾ Yet, research finds no support for these claims.

In interviews with jurors who decided medical malpractice cases I found that jurors viewed the plaintiffs' claims with great skepticism.⁽⁸⁰⁾ Their attitudes were expressed in two main themes: first, too many people want to get something for nothing and second most doctors try to do a good job and should not be blamed for a simple human misjudgment. Indeed, these attitudes were even expressed in some cases in which jurors decided for the plaintiff. Jurors who decided against the doctor sometimes expressed concern that the verdict might have an adverse effect on the doctor's practice. This does not mean that in every case jurors held these views. Sometimes, evidence of the doctor's behavior caused jurors to be angry about the negligence. However, even in these latter cases the interviews indicated that the jurors had initially approached the case with open-minds.

Professor Valerie Hans interviewed jurors who decided tort cases, including medical malpractice, as part of a larger study of business and health provider defendants and obtained similar findings.⁽⁸¹⁾ In one of the studies incorporated in her book she concluded that

Jurors often penalized plaintiffs who did not meet high standards of credibility and behavior, including those who did not act or appear as injured as they claimed, those who did not appear deserving due to their already high standard of living, those with pre- existing medical conditions, and those who did not do enough to help themselves recover from their injuries.⁽⁸²⁾

In recent research in Arizona I and my colleagues have studied the actual videotaped deliberations of 50 civil juries; some of the cases in the study involve claims of medical malpractice.⁽⁸³⁾ The findings from this unprecedented systematic view into the actual jury room is consistent with the Hans conclusions. Moreover, these findings about jury attitudes are consistent with the research on claiming behavior norms discussed above in this report.⁽⁸⁴⁾

B. Jury Verdicts Tend to Be Consistent With Judgments of Neutral Medical Experts

C. Judges Agree With Jury Verdicts

Several studies have asked trial judges to make independent assessments of who should have prevailed in civil cases over which they have presided.⁽⁸⁶⁾ These judge assessments have been compared to the jury verdict in that case. Although the research has not specifically focused on malpractice juries, the findings indicate that there was high agreement between the judge and the jury. Moreover, in instances when the judge would have decided differently than the jury, the judges usually indicated that nevertheless, the jury could reasonably have come to a different conclusion from the trial evidence.

Other studies have asked large national samples of judges to draw on their professional experience with juries and give a general opinion about jury decisions.⁽⁸⁷⁾ The overwhelming number of these judges give the civil jury high marks for competence, diligence and seriousness, even for complex cases. These studies are thus consistent with the other studies that compared the judge's opinion with specific jury verdicts.

D. There Is No Evidence Supporting Claims of a "Deep Pockets" Effect

Closely related to the claim of jury sympathy is a claim that juries are more likely to render verdicts against doctors, hospitals and corporations not because they are seen as negligent but only because the jurors perceive them as having the ability to pay large awards-a so-called "deep pockets"effect. A number of research studies have assessed this hypothesis and find no support for it.⁽⁸⁸⁾ This general finding includes experiments that specifically tested for a deep pockets effect in medical malpractice cases.⁽⁸⁹⁾

E. There is Little Evidence To Support a Claim that Juries Are "Overwhelmed" By Plaintiff's Experts

An often-repeated charge is that jurors are overwhelmed by experts, particularly the plaintiff experts, in medical malpractice cases.⁽⁹⁰⁾ This confusion and deference to experts, it is alleged, plays to the advantage of plaintiffs because the jury then simply defers to the plaintiff's experts and allows juror sympathies for the plaintiff to be the basis of their verdict. There is some fuzzy logic in this claim because it ignores the fact that defendants also cross-examine plaintiff experts and call their own experts who offer opinions contrary to the plaintiff's experts. Moreover, the defendants typically call more experts than the plaintiff. However, more important is the fact that research into civil jury behavior refutes these allegations.

Professor Shari Diamond and I recently reviewed studies of jury responses to experts.⁽⁹¹⁾ The findings led us to conclude that (a) jurors do not "automatically defer to experts" and (b) have a basic understanding of the evidence in malpractice and other cases.⁽⁹²⁾ They understand the adversary system through opening statements and judicial instructions. Moreover, they carefully scrutinize and compare the testimony of opposing experts.

Through a series of case studies reported in Medical Malpractice and the American Jury I documented the processes by which jurors reached their verdicts. Interviews with jurors indicated that, in general, through collective discussions about the evidence they came to have an essential understanding of the case and the issues in the dispute.⁽⁹³⁾ While jurors may not have backgrounds in medicine they become educated about the basic issues during the trial through the processes of expert testimony from both sides and from cross-examination. Deliberation and collective wisdom produces an understanding that results in a justifiable verdict.

F. Jury Damage Awards Tend to Be Moderate and Correlate With Severity of Injury

The claim that jury damage awards frequently go excessively beyond those losses must be addressed, especially when general damages that are frequently, but inappropriately,⁽⁹⁴⁾ called "pain and suffering" are included in the award. Various research studies have also examined these claims.

In 1992 and again in 1996 the Office of Justice Programs of the U.S. Department of Justice undertook a systematic survey of verdicts in state courts in the 75 largest counties in the nation.⁽⁹⁵⁾ Of the 10,596 tort, contract and real property rights cases in the 1996 sample, there were 1112 medical malpractice cases and plaintiffs prevailed in 23 percent, or slightly more than in one of five.⁽⁹⁶⁾ The median final award when plaintiffs prevailed was $254,000; but 22.1 percent of cases equaled or exceeded $1 million.⁽⁹⁷⁾ Punitive damages were awarded in only three cases, 1.1% , when plaintiffs prevailed.⁽⁹⁸⁾

The plaintiff win rates in the BJS study are generally consistent with 14 earlier studies of win rates in medical malpractice jury trials, although there was some variation between jurisdictions.⁽⁹⁹⁾

Bovbjerg, Sloan and Blumstein found that the magnitude of jury awards in a sample of medical malpractice tort cases was positively correlated with the severity of the plaintiffs' injuries, except that injuries resulting in death tended to result in awards substantially lower than injuries resulting in severe permanent injury, such as quadriplegia.⁽¹⁰⁰⁾ While Blumberg et al. concluded that there was considerable variability within categories of injury severity, later research by Sloan and van Wert,⁽¹⁰¹⁾ discussed earlier, provides a plausible explanation for this variability, namely that economic losses vary considerably within each level of injury severity. For instance, the economic loss for a quadriplegic who is 40 years old with a yearly income of $200,000 and a family three young children would ordinarily be much greater than an identical quadriplegic who is retired, widowed, 75 years old, has no dependents, and whose annual income never exceeded $35,000.

In a study of medical malpractice verdicts in New York, Florida and California Vidmar , Gross and Rose also found that jury awards of prevailing plaintiffs in malpractice cases were correlated with the severity of the injury.⁽¹⁰²⁾ Daniels and Martin found a similar pattern.⁽¹⁰³⁾

G. The "Pain and Suffering" Component of Awards Is Mis-characterized and Mis-understood

The general damages portion of damage awards is often labeled "pain and suffering," but this is an inappropriate label, because some of these elements of damages involve injuries that are not strictly "pain and suffering." Rather, they include such injuries as severe disfigurement, emotional distress, mental anguish, loss of parental guidance or parental companionship, loss of enjoyment of life and loss of consortium.⁽¹⁰⁴⁾ These damages share with strict "pain and suffering" the characteristic that precise dollar figures cannot be attached to them, but they nonetheless have potential economic consequences. In medical malpractice cases, for example, negligent administration of a drug that makes the patient permanently psychotic would be a severe trauma, that aside from medication and health care can have many other economic consequences, including diminished job performance. A sexual assault by a doctor while undergoing medical care could result in severe emotional stress that would prevent the injured person from performing her job at the same level as before or cause her to be unable to work at all.

Vidmar's interviews with jurors who decided medical malpractice cases indicated that jurors considered the effects of disfigurement and emotional trauma on chances for promotion, the likelihood of a marriage dissolving as a result of the injury and the economic consequences as well as strict pain and suffering.⁽¹⁰⁵⁾ Jury instructions usually caution jurors that they should not award compensation for general damages when the same element is included in special damages but these lines of demarcation are often indistinct.⁽¹⁰⁶⁾ In research comparing juror decisions with those that would have been rendered by judges and senior lawyers Vidmar found that juror reasoning on damages was similar to that of the professionals.⁽¹⁰⁷⁾

The important point to be made about these findings is that using the label "pain and suffering" as a generic term for general damages greatly oversimplifies the complex human judgments that case law and statutory law ask juries to make. Moreover, aside from the policy issue of whether and how much plaintiffs should be awarded for their pain and suffering the label obscures real economic injuries contained in general damages.

Vidmar, Gross and Rose's examination of medical malpractice verdicts in New York, Florida and California⁽¹⁰⁸⁾ found that the general damages portion of awards was generally positively related to severity of plaintiff injury. That is, the more serious the injury the higher the mean and median levels of general damages. The exception to this trend was that in cases involving death the mean and median awards tended to be substantially lower than in cases of very serious permanent disabilities a finding consistent with the Bovbjerg et al. findings.⁽¹⁰⁹⁾ While these verdict statistics provide no information on the actual basis of the jury's decisions, there is no evidence that they result from caprice or unwarranted sympathy.

VII. Outlier Awards Tend To Not Withstand Post-Verdict Adjustments

Despite the substantial evidence indicating that ordinarily juries are conservative in deciding damages in malpractice cases, there are clearly exceptions resulting in what are commonly labeled "outlier awards."⁽¹¹⁰⁾ The concept of "outlier awards" and their actual incidence is discussed earlier in Section I of this Report.

There are a number of reasons for outlier awards.⁽¹¹¹⁾ One is that in some instances doctors contest the case solely on liability and do not call experts on damages or contest damages at all. The plaintiff, on the other hand, presents the losses through experts who give a "Cadillac" version of the plaintiff's losses. The jury is instructed by the judge to decide damages solely on the evidence, and the jurors have only the plaintiff's figures to work with. Despite reservations the jurors follow the judge's instructions and accept the plaintiff's suggested award because that is the only evidence that they have. In other instances, the defense may call an economist who offers an alternative to the plaintiff's damages evidence; the floor may be quite high due to the seriousness of the injury; and the jury uses this as a floor from which damages are estimated. Additionally, in some jurisdictions juries are presented with the gross amount of a loss or of a life care plan that is not reduced to present value.

The final explanation casts the jury in a less favorable light. Specifically, because of the evidence brought out at trial the jurors become so outraged at the negligence of the defendant that they essentially violate the judge's instructions and appear to add a punitive component into their compensatory award.⁽¹¹²⁾ These outlier awards are not as frequent as portrayed in the mass media,⁽¹¹³⁾ but they unquestionably do occur. Nevertheless, research evidence indicates that these verdicts seldom withstand post-verdict proceedings.

In their study of malpractice verdicts in New York, Florida and California Vidmar, Gross and Rose asked what happened to the outlier awards.⁽¹¹⁴⁾ There are four main processes by which awards are reduced: the judge reduces the award verdict through the legal mechanism of remittitur or j.n.o.v.; the case is appealed and a higher court reduces the award; the parties set a high-low agreement,⁽¹¹⁵⁾ and, most common of all, the plaintiff and the defendant negotiate a post-trial settlement that is less than the jury verdict.

Merritt and Barry conducted a detailed examination of jury awards in Franklin County (Columbus) Ohio.⁽¹¹⁶⁾ They documented a number of post-trial reductions in jury awards. For example, a $12 million award was reduced by the trial judge to $8.5 million and a $3 million award was reduced by an appeals court to $1.5 million. Other large awards settled for lesser amounts as well.

Plaintiffs are willing to negotiate lesser amounts for three main reasons. First, many plaintiffs need or want the money immediately rather than wait for the years it will take to get the money if the case is appealed. Second, there is always a risk that an appeals court will reduce the award or even overturn the verdict. Third, most of these outlier awards greatly exceed the medical provider's insurance coverage. While plaintiffs and their lawyers could attempt to foreclose on the defendant's assets, they are extremely reluctant to do so.⁽¹¹⁷⁾ Therefore, the plaintiff negotiates a settlement around the defendant's insurance coverage. High-low agreements, too, usually take cognizance of the upper limits of insurance coverage.⁽¹¹⁸⁾

Vidmar et al. were able to empirically explore the fate of many of the outlier awards. They found that some of the largest malpractice awards in New York that made national headlines ultimately resulted in settlements between 5 and 10 percent of the original jury verdict. These findings about these reductions are consistent with earlier research by Broeder,⁽¹¹⁹⁾ by researchers at the RAND Corporation,⁽¹²⁰⁾ and by researchers at The National Center for State Courts.⁽¹²¹⁾

VIII. Injured Claimants Often Receive Less Than Actual Economic Losses

Debates about medical malpractice reform often ignore the lives and financial effects of injuries suffered by plaintiffs. In the study of birth and emergency room injury awards, Sloan and his colleagues compared