Vol. 6, No. 2 (February, 1996) pp. 37-39
MEDICAL MALPRACTICE AND THE AMERICAN JURY by Neil Vidmar. Ann
Arbor: University of Michigan Press, 1996. xii + 318pp. Cloth
$34.50.
Reviewed by Joanne Martin (American Bar Foundation -- Chicago.
E-mail: joanne-martin@nwu.edu)
Unfortunately, much of the empirical work undertaken by academics
that addresses issues of critical importance in the debate over
tort reform has in effect been made available only to other
academics. The publication of research findings in academic
journals is, of course, appropriate and necessary to allow for
peer review and to provide the academic community the opportunity
for critical comment. However, this vehicle does not appear to
convey information efficiently into the public policy arena and
an important voice is too often lost. Neil Vidmar's recent book
brings his fine work on jury behavior and medical malpractice
litigation to a broader audience. Vidmar weaves together jury
verdict and closed claim data, case studies, interviews with
lawyers and liability insurers and the results of simulation
experiments to produce a rich tapestry that depicts an intricate
portrait of the workings of the medical malpractice component of
our civil justice system.
The first four chapters of this volume are clustered under the
heading, "The Debate and the Evidence." Chapter 1,
entitled "Are Medical Malpractice Juries Engaged in
Malpractice?" briefly sets out the negative claims about
medical malpractice juries (and civil juries in general):
pro-plaintiff sympathies, lack of competence in dealing with
complex issues and the testimony of expert witnesses, and general
capriciousness and unpredictability. This chapter also defines
the data sources that will be used in the discussion and charts
the course for the remainder of the book.
Chapter 2 presents a brief survey and methodological critique of
the grounds upon which claims about jury behavior in medical
negligence cases are made, characterized as anecdotal reference,
unrepresentative verdict data and representative verdict data.
Anecdotes reveal little about the overall system and are selected
for their evocative power; unrepresentative verdict data present
a skewed portrait while unfortunately emitting a scent of
credibility; and representative verdict data describe the tip of
the iceberg, but provide no information about the case selection
process or juror motives, attitudes or perceptions.
Chapter 3 describes jury verdict and settlement statistics from
Vidmar's North Carolina database. Five abbreviated case studies
are integrated into this discussion to both highlight the
weaknesses of relying only on jury verdicts to inform the
characterization of the civil justice system and also to provide
specific insights into the description of medical malpractice
jury behavior. These case studies suggest that the plaintiffs who
lose at trial might not walk away empty handed because of
settlement before trial with parties no longer formally joined in
the lawsuit. Also, while some plaintiff "wins" may not
cover expenses, let alone expectations, other potentially high
awards disappear from the visible array of verdicts because they
settle for high amounts. Chapter 4 contains a review of an array
of other empirical work to provide a backdrop against which the
malpractice cases and verdict patterns in Vidmar's North Carolina
database may be examined to provide an
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assurance that they are "not atypical."
The next set of chapters is grouped under the heading "Case
Selection and Its Importance in Understanding Jury
Outcomes." Chapter 5, written with Laura Donnelly, explores
potential differences between cases that go to trial, those that
settle and those that are concluded without trial and without
payment. Severity and the nature of the injury, the initial
number of defendants and the degree of specialization of the
plaintiff's attorneys appear to be important factors.
In Chapter 6 another set of case studies is used to describe the
complexity attendant in the preparation and presentation of a
medical malpractice case. Four case studies document the
substantial uncertainty that can afflict both sides at various
stages in the process and the breadth of the disparity in their
estimates of liability and the value of the case. Chapter 7
provides insight into factors that might influence the settlement
decision such as the risk averseness of plaintiffs and the effect
of liability insurer behavior. In the summary of this chapter
cluster, Vidmar concludes that cases that proceed to trial tend
to be those in which evidence of defendant liability is weak,
which raises questions as to why plaintiff's lawyers take them to
trial. He posits that the imbalance of information between the
parties, with plaintiff's lawyers being handicapped particularly
during the earlier stages of the "litigation" process,
may play an important role in the pursuit of weak cases to trial.
Vidmar appropriately puts these notions forth as hypotheses;
there is much that we do not yet know in any systematic fashion
about the selection of cases for trial.
Seven chapters are assembled under the heading
"Liability." The first chapter in this section is
authored by a corporate executive who sat as an alternative juror
on a New York malpractice case that produced one of the highest
medical malpractice verdicts in the country. It provides a useful
insights into the jury process from the point of view of an
articulate and thoughtful observer who describes his
participation as a "soul searching experience." This
chapter is followed by a rather telling postscript -- a
discussion of the judicial review process of that case and its
results. The third chapter in this series provides a brief
overview of the complexities with which juries must deal in
resolving the issue of liability.
The next two chapters present case studies: the first describing
a set of three cases that suggest that medical malpractice cases
are not all confoundingly intricate and that juries can render
informed judgements and the second uses three more complicated
cases to balance the picture being presented. Chapter 14
discusses alternatives to juries -- panels of neutral doctors --
and through discussions of other empirical work, finds that
assessments of juries as to negligence are not out of line with
those of physicians who may as a group "err" in favor
of their colleagues. Also highlighted is evidence that, contrary
to "popular" belief, severity of injury does not
provoke untoward sympathy among jurors; expert witness testimony
is not weighed inappropriately; and juries do not tend to favor
patients over doctors. Indeed, the final chapter in this segment
raises the hypothesis that a pro-defendant bias may exist given
the conformance with physician liability assessment patterns.
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The final cluster is entitled "Damages" and leads with
a short chapter containing a brief definitional discussion of
economic, non-economic and punitive damages and an overview of
jury instructions relating to the determination of damage awards.
The next two chapters focus on the alleged penchant of juries to
seek out and pick the deep pockets of certain types of
defendants. Jury verdict data exhibit higher awards in medical
malpractice and products liability cases, but can only begin
through investigations of the severity of injury alleged, to
answer questions regarding the size of these awards.
Chapters 18 and 19 present the results of several simulation
experiments conducted by the author and his colleagues designed
to test for variations between medical malpractice and auto
negligence cases and individual versus deep pocket defendants. No
significant differences were found among these scenarios, calling
into question jurors' alleged collective desire to reward
plaintiffs by plucking dollars from the nearest deep pocket.
Addressing the issue of the special expertise of legal
professionals (and the lack of competence on the part of jurors)
to assess pain and suffering awards, this technique was used to
compare the ability of jurors and lawyers to arrive at an amount
for pain and suffering. Again, no significant variations were
found between the two groups. Chapter 20 revisits case studies
described earlier to compare comments of jurors who served on
these cases with those of the individuals who participated in the
simulations. Subsequent chapters call into question whether it is
inappropriate to find large awards in medical malpractice cases.
The findings from the work of Professor Frank Sloan et al. is
used to assert that economic damages in medical malpractice cases
can be substantial, laying the underpinnings for substantial
awards. In other words, it is not the pain and suffering awards
that inflate malpractice verdicts. Referring to verdict data from
work done by others, Vidmar reminds that punitive or exemplary
damages occur rarely and that when they do the type of harm or
behavior statutorily requisite to these awards is usually
present.
Vidmar uses the forum of a book-length manuscript to bring to a
large audience not only his own work in the medical malpractice
arena, but a generous review of the labors of other scholars. He
uses his own data and research, supplemented by that of these
others, to counter the popular allegations about juror behavior
in medical malpractice. While one might quibble with some of the
hypotheses raised throughout the book, it must be noted that he
has taken care not to stretch his findings beyond sound empirical
underpinnings and to meticulously distinguish between finding and
hypothesis. In the book's final chapter, Vidmar concludes with
the caution that policy making based on inaccurate assumptions
and faulty identification and characterization of problems with
the system produces nonsolutions and perhaps fatal harm. The
civil justice system may benefit from some reforms, but not those
predicated on mischaracterizations. There is much yet to be
learned and Vidmar sounds the rallying cry for more research,
particularly in areas like products liability, and for a close
monitoring of the changes that have already been put in place.