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77% of Medical Malpractice Jury Trials Result in Defense Verdicts

By Byron Warnken, on September 8, 2013

and other facts you didn’t know about medical malpractice…

Most Medical Malpractice “Cases” Do Not go to Trial

Medical malpractice continues to be a rare lawsuit to find in the courtroom.  Less two percent of all civil cases filed involve medical malpractice.  Of those cases filed, less than eight percent of those cases are disposed of by a judge or jury.  Robert C. LaFountain et al., Examining the Work of State Courts: An Analysis of 2008 State Court Caseloads (National Center for State Courts 2010) at 26; U.S. Department of Justice, Bureau of Justice Statistics, “Tort Bench and Jury Trials in State Courts, 2005,” NCJ 228129 (November 2009).

It may seem surprising that less than ten percent of all malpractice cases ever make it to a verdict by a judge or jury, but unlike some areas of tort law, malpractice cases often end in a settlement between the medical provider and and the injured patient or patient’s family. To further skew the statistics on malpractice claim success, such settlements are not always public knowledge and may include confidentiality provisions preventing the plaintiffs from discussing the suit or the award.

Most Plaintiffs Lose

For those cases that are decided by a jury, it is highly likely that the decision will be in favor of the doctor or medical facility; in fact, the win rate for medical malpractice is less than 25 percent if decided by a jury.  Robert C. LaFountain and Cynthia G. Lee, Medical Malpractice Litigation in State Courts (April 2011) at 4.  U.S. Department of Justice, supra at 4.

Though many would assume that multi-million-dollar awards are common, the average award is around $400,000, with juries awarding about that amount and judges awarding about $631,000.

Even When You Win You Lose

The malpractice suit does not end with a jury verdict.  Even those plaintiffs who win against a medical facility or provider will face a number of postverdict proceedings, including motions for remittitur (reduction in the award), motions for a new trial, and appeals to higher courts. It is at this point when settlement once again plays a role in the ultimate award. Often, plaintiffs will agree to a settlement amount below that awarded by the jury in order to avoid years of further litigation, particularly when plaintiffs have an immediate need for the money. Valerie P. Hans and Neil Vidmar, American Juries: The Verdict. Amherst, NY: Prometheus Books (2007) at 333.

And Now for the Opinion

Statistics will show you that the big, bad tort reform is not necessary.  In fact, various books even highlight the concept that the only problem with medical malpractice is how much of it there is and how the insurance companies are playing on fear to make more money.  Here’s one.  Ah, but you have your side and I have mine.  There’s always room for healthy debate.

But here’s the thing.  You’re the one getting hoodwinked.  Not me.  The big money in this country buys the policy.  It manipulates.  It gets those most likely to be screwed to vote for the ones doing the screwing.  In the words of the late George Carlin, “It’s all bullshit folks, and it’s bad for ya.”

You have to look at the incentives.  In this world, I think you need to be as cynical as I am.  If medical malpractice was so terrible, insurers wouldn’t be insuring and doctors wouldn’t be doctoring.  Simple anecdotes are not sufficient.  These things are not happening on a wide scale.  No chance.  No how.  If you think I’m wrong, cite something.

Defense lawyers get paid by the hour.  Plaintiffs lawyers get paid on contingency.  Where are the real incentives there?

But in all this argument, real people are getting hurt.  Here’s a story from PopTort.  They do a much better job than I ever could at highlighting what’s really going on.

So I may be of some benefit to those seeking a Maryland medical malpractice lawyer, here’s the list.

Sources:

http://www.bjs.gov/content/pub/pdf/tbjtsc05.pdf

http://www.courtstatistics.org/flashmicrosites/csp/images/ch-18-1.pdf

http://www.courtstatistics.org/other-pages/~/media/microsites/files/csp/ewsc-2008-online.ashx

5 thoughts on “77% of Medical Malpractice Jury Trials Result in Defense Verdicts

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  4. Why is it that pretty much the only people on the planet who oppose tort reform… are plaintiff’s lawyers.

    Sorry… it’s coming. Sack up.. get used to it. It’s time to sleep in the bed you’ve made

    • Well, the plaintiffs’ lawyers and all the people who had shitty doctors operate on the wrong leg, or leave an instrument inside of them, or fail to order a test they knew should have been ordered because they’d have to stay in the office and extra half hour to read the results, or who scheduled too many deliveries and couldn’t keep us with all the pitocin and didn’t C-section an obvious C-section and the kid then had cerebral palsy his whole life, or who didn’t diagnose the heart attack because they were too busy, or who gave gastric bypass to a patient who wasn’t a candidate because they wanted the extra $20,000 for their practice.

      The only reason the plaintiffs’ lawyers are the ones who actively oppose are because we know these things happened as the result of negligence and neglect. The people who it happens to are already fucked. They might oppose, but it’s too late.

      And the plaintiffs’ lawyers know the less consequences bad doctors face, the more it will happen.

      The vast majority of docs are great, the vast majority of lawyers are honest, the vast majority of cops are excellent. But that doesn’t mean there shouldn’t be a fair process to find out which ones don’t meet standards. With doctors, that means the civil justice system.

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