77% of Medical Malpractice Jury Trials Result in Defense Verdicts
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.