The jury is in
Mizzou law professor gives malpractice a thorough checkup
When it comes to malpractice law, here’s the general assumption: Juries look at injured patients with sympathy and find in their favor. This assumption drives doctor protest and legislative reform. But is it true?
That’s the question Philip Peters, the Ruth L. Hulston Professor of Law, set out to answer. His research results show that juries are actually more likely to give doctors the benefit of the doubt.
Peters (pictured above) had seen many individual studies that concluded the same thing. By synthesizing those studies, which examined malpractice cases in various regions of the country from 1989 to 2006, and by comparing jury findings with independent medical opinions, Peters has produced a compelling case. His research is published in the May edition of the Michigan Law Review.
“Juries take the burden of proof seriously,” he says. “The jury really has to be sure before they’ll find against a doctor.”
In “weak” cases, when memories are hazy or there’s no clear breach of standard care, juries find in favor of doctors 80 to 90 percent of the time. In “middle-of-the-road” cases, when there may be differing opinions as to what a doctor should have done, juries favor doctors about 70 percent of the time. And even in “strong” cases, when independent experts expect a plaintiff to win more often than not, juries still find for doctors about 50 percent of the time.
What accounts for the difference in popular perception and statistical data? Peters proposes several possibilities, including the fact that doctors and the public at large are more likely to read or hear about the most flagrant cases against doctors rather than the average ones that end in their favor. “Humans aren’t all statisticians,” he says. “We like to hear a story, and a story can often be more powerful than numbers.”
Peters hopes his research can aid legislators and experts as they tweak the malpractice system and fight high insurance premiums. Additionally, he has begun to examine malpractice settlements in a similar fashion. Only one case or so out of 10 actually goes to trial; the rest go to settlements.
Peters wants to know “whether the settlement process is as fair to defendants as the trial process,” he says. “Maybe they’re giving unwarranted settlements to get rid of cases, and that is unjust.”