Juries give outrageous rewards, right? Wrong.

Continuing my series on Tom Baker's The Medical Malpractice Myth, today we'll take at look at juries and frivolous awards.

The idea that juries sit around awarding hundreds of millions of dollars in frivolous medical liability lawsuits is one of the most pernicious aspects of the malpractice myth. That's because Americans are obsessed with lawsuits across the crime spectrum -- from OJ to Michael to that old lady who spilled coffee on herself and sued McDonalds -- and the idea that we're a culture ready to sue at the drop of a hat is quite enduring. What do medical malpractice torts have in common with those cases? Like the McDonalds coffee woman, who received third degree burns from the coffee and tried to settle for a measly $10,000 for her trouble, medical malpractice suits are prone to reaching celebrity-like status.

The claim that frivolous lawsuits are being brought, and its logical extension that juries are awarding unfair amounts, just isn't supported by the evidence. First, researchers found that only 3-4% of injured plaintiffs sue. It's not possible that we’re seeing rash of frivolous malpractice suits because just not that many people ever get to court.

It's important to realize that a good portion of lawsuits are settled out of court (thus by-passing the hundred million dollar jury awards), and a good portion of lawsuits are dropped. It’s extremely difficult to prove negligence caused injury. That's partly because of the complexity of practicing medicine -- experts must testify if a doctor followed (or didn't) reasonable practice standards. It can also be tough to determine the exact cause of injury, and even then deciding how to assign a monetary value to injury can be very subjective. Researchers took it a bit further though, to be sure that those who are being compensated aren't getting unnecessary amounts.

Despite all these factors, research shows that juries just aren't awarding any more money (adjusting for inflation and the cost of injury) than they did 40 years ago. One of the largest studies of this kind, by RAND, found this:

Our results are striking. Not only do we show that real average awards have grown by less than real income over the 40 years in our sample, we also find that essentially all of this growth can be explained by changes in observable case characteristics and cliamed economic losses (especially claimed medical costs).

Most tort reforms call for a cap on damages. But when you see the research it becomes clear: caps on damages are unnecessary at best. While there are certainly instances of frivolous lawsuits and awards, they're clearly not enough to skew the fact that damages have increased less than income. In fact, judges decide in favor of patients more often than juries, and there's evidence that juries actually have a bias towards doctors.

Tort reform will only make it more difficult for patients to sue (and with only 3-4% suing, that's quite an accomplishment), make it harder for the seriously injured to get adequate compensation, and it certainly won't slow health spending. It's a bad deal for everyone except insurance companies and negligent docs.

Comments

[Stephen]

As a barista, I get a lot of comments about the McDonald's lady. It really throws people for a loop when I mention that McD's had ignored hundreds of similar complaints that same year, and that the damages she sought in the lawsuit were far less than what the jury awarded.

And that's why I put a lid on every hot drink I hand out, no matter what anyone wants. That's one time that the customer is wrong.

[Battlepanda]

Not that I disagree with the main thrust of your post, Kate, but thinking outside the box a bit, I am appalled by the low number of people who actually decide to go to court when they have been the injured party. And of that 3-4%, what proportion actually obtain justice?

Good for the people (including the Mcdonalds lady) who braved the courts and made the party at fault pay. But is it really a just system where 96% of those wronged ever seek recourse?

I'm sure as you are deeply involved in health policy you would have seen this Slate article on the Swedish no-fault system for resolving malpractise issues already. It does seem much more humane and likely to result in better outcomes for more of the patients than our current system.

[Fred Jones]

damages she sought in the lawsuit were far less than what the jury awarded.

And yet the jury, left to its own device, would have, indeed, awarded this lady 2.9 million. Even the judge saw they were out of control.

[larkspur]

In med-mal cases, if it actually goes to a jury trial, and if the jury finds in favor of plaintiff, it doesn't mean that the jury assumes that plaintiff gets 2.9 million, the dollar bills falling from the ceiling like confetti.

It means that defendant, and plaintiff's underlying claim, pissed off the jury to the degree of 2.9 million. Juries know that a med-mal verdict means that the next step is that the parties meet and hammer out a settlement. Plaintiff gets substantially more than defendants ever considered as a settlement offer; defendants are finally inspired to make a realistic offer; plaintiff agrees to a lot less than 2.9 million in exchange for defendants dropping an appeal.

Juries in general are smarter than you think.

[shadowfax]

Battlepanda wrote:
I am appalled by the low number of people who actually decide to go to court when they have been the injured party. And of that 3-4%, what proportion actually obtain justice? But is it really a just system where 96% of those wronged ever seek recourse?

Not every injury requires a legal remedy, or even a financial remedy. I am an ER doc, and I have injured people; for that matter I have killed people (or at least failed to prevent their deaths). I've not been sued, not so far, anyway.

Why?

Well, first of all, in the cases where a mistake was made, we came clean and immediately informed the patient/family, and apologized. That goes a very very long way towards defusing legal liability. Most people who sue do so because they feel they were lied to or something was being covered up. And I am nice to patients and listen to them without being dismissive or condescending. People are less likely to sue if they like their doctor.

In my defense, I think the cases I've had which went really bad were defensible and within a reasonable standard of care. But the point is that being injured should not inevitably lead to a lawsuit.

lty

[The Bloviator]

Here is a pdf link to the RAND Study, which appeared in the Journal of Empirical Legal Studies.

A significant component of why only 3-4% of negligently injured patients sue, in addition to the trust generally held between physicians and patients that shadowfax alludes to, is that many potential plaintiffs can't find someone to represent them in court. This is due to a number of reasons: the damages, while negligently caused, may not be high enough for the attorney to take on the case; the attorney may feel the plaintiff may not be "sympathetic enough" in front of a jury; the case is, in essence, not a slam-dunk on the issue of deviation from the standard of care.

What tort reform measures largely do is set the qualifying conditions to have an attorney take an injured patient's case even higher, so that only the most sympathetic patients with the most severe injuries might have their day in court. It's a matter of choking off supply, and has nothing to do with recalibrating the court system to come to more "just" outcomes.

[janinsanfran]

People sue because:
1) doctors promise care -- if they don't deliver it AND don't show their concern as shadowfax does, medical victims get righteously pissed.
2) there is no way, except to sue, in a country with a for-profit health system to pay for health care necessitated by bad medicine. Universal health care provision would reduce the experience of unmerited injury a lot.

Simple minded, but still true.

[Battlepanda]

Well, first of all, in the cases where a mistake was made, we came clean and immediately informed the patient/family, and apologized. That goes a very very long way towards defusing legal liability. Most people who sue do so because they feel they were lied to or something was being covered up. And I am nice to patients and listen to them without being dismissive or condescending. People are less likely to sue if they like their doctor.
This goes to the heart of what the article I linked to talked about. Many doctors take the opposite tack and refuse to admit fault lest they leave themselves liable. Sometimes all the patient wants is a hearfelt apology. The swedish system separates compensation from discipline. If a patient suffers from mistaken medical care, be it "accidental" or "negligent", they are compensated out of the court of law. Doctors are free to say "sorry" to the patient without exposing themselves. No fault. No courts. No lawyers. But those who are injured are compensated. It just seems more humane all around.

[paul]

When the Bloviator says that damages, though due to negligence, may not be large enough to attract a lawyer, that's glossing over the miserable way that the law typically defines damages. Bust up the larynx of a fast-talking stock trader, and you've caused millions of dollars in lost income. Kill a retired sheet-metal worker or widowed old lady in a nursing home, and you've lost their family members the pleasure of their company, plus maybe some odd chores or entertainment they could have offered. So even if the malpractice involved is horrific, offenses committed against the poor or the old just don't get much compensation (especially when noneconomic damages are capped).

One terrible outcome of this kind of measurement is that it can be cheaper in malpractice-payout terms to kill a patient than to deal them lifelong debilitating injuries. Yet another reason why discipline should be decoupled from payout.

"thanks in part to the vice-like grip physicians have historically kept on supply and demand."

Thats a load of BS. The AMA and doctors in general have no control over the number of med school seats. The LCME controls that. As long as you meet the accreditation criteria, then you can open up a med school anytime you want. The AMA has no say in whether new med schools are built or expanded or whatever. State legislatures control this, not the AMA, medical boards, or doctors in general.

Take for example the case of Florida. They recently approved 3 new medical schools (FSU, FIU, UCF) and the AMA had NOTHING whatsoever to do with it.

The only people who control whether or not new med schools are built or expanded are STATE LEGISLATURES, not the AMA or doctors lobby.

excluding other types of medical practice (osteopathy, chiropractic, etc) from gaining respectability.

But these controls on the number of rears in med school seats any given year have helped retain a regionally fractured care system.