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.


Copyright 1995