Tuesday, July 24, 2007

Law and Medicine Rounds

By Dainius A. Drukteinis, M.D., J.D.

“The only real mistake is the one from which we learn nothing.”
- John Powell

Jury or Administrative Health Court:
Which Would You Choose?

Many physicians are critical of juries adjudicating medical malpractice cases. They attribute the current medical malpractice “crisis,” in part, to jury confusion over complex scientific evidence. In light of this alleged confusion, it is suggested that juries more readily fall for the patient attorney’s arguments. Juries are also perceived as being inherently biased toward the injured patient rather than the defendant physician. The Institute of Medicine suggests removing medical malpractice cases from the hands of the jury, and establishing an Administrative Health Court with experts as panelists. There is current legislation in Congress to establish such a system.

A recent study by the Michigan Law Review questioned these assumptions in Peters PG, Doctors & Juries, Michigan Law Review, 105 Mich. L. Rev. 1453 (May 2007). This was a compilation of three decades of research on medical malpractice jury literature including both large- and small-scale studies.

The results were surprising.

In a 2001 sample of 1,038 medical malpractice trials, only 27% of jury verdicts were for the patient, compared to 52% jury verdicts for injured plaintiffs in personal injury cases as a whole. Based on theories of negotiation and settlements, this appears to be an imbalance. The United States Supreme Court as well as prominent legal scholars has employed the 50-50 win rate to predict a fair adjudicatory process. On the surface, it would appear that the current medical malpractice system favors the defendant physician. This finding, however, was broken down further.

The review demonstrates that the degree of negligence or physician carelessness impacts jury findings. The greater the carelessness, the more likely a jury is to decide in favor of the patient. The review looked at seven studies comparing jury verdicts with independent evaluations by experts. In patient cases deemed weak by experts, patients won only 10-20% of the time. In patient cases deemed strong by experts, patients won only 50% of the time. What does this evidence suggest?

At first glance, 10-20% of weak cases may appear to be high, considering independent experts deemed the patient cases weak. However, this is less than an inter-rater variability of 30%, predicted by numerous studies outlined in the article. Inter-rater variability would predict patients to win in approximately 30% of these cases if they had been adjudicated by an expert. The article suggests that jury verdicts on weak cases are very stringent. On the other hand, in cases deemed strong by experts in favor of the patient, patients won only 50% of the time. In other words, patients lose half of the cases that experts say they should have won.

According to this review, meritless cases rarely win, whereas cases with merit only win half of the time. Based on these results, it may be patients who should argue for Administrative Health Courts, not physicians. It was the conclusion of this review,

“Although the current system of resolving malpractice claims has many shortcomings, neither randomness nor favoritism toward injured patients is among them."

Dainius A. Drukteinis, M.D., J.D. is a fourth year Emergency Medicine Resident at NYU/Bellevue Hospital. He may be contacted at ddrukteinis@gmail.com

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