"Hapless juries have become the symbol of a civil justice system run amok," says University of Missouri-Columbia law professor Philip G. Peters. In an extensive new literature review, about to be published in the Michigan Law Review, Prof. Peters tests that stereotype, evaluating empirical studies going back thirty years on jury performance in medical malpractice cases.
Real jury decisions, Prof. Peters concludes, are far more complex than the knee-jerk plaintiff's verdicts people keep complaining about. His main findings are summarized in the abstract (the underlining is mine):
- "First, negligence matters. Plaintiffs rarely win weak cases. They have more success in toss-up cases, and fare best in cases with strong evidence of medical negligence."
- "Second, jury verdicts are most likely to square with the opinions of experts hired to evaluate the jury's performance when the evidence of provider negligence is weak. This is the very set of cases that most worries critics of malpractice litigation. Juries agree with expert reviewers in 80 to 90 percent of these cases - a better agreement rate than physicians typically have with each other."
- "Third, jury verdicts are much more likely to deviate from the opinion of an expert reviewer when there is strong evidence of negligence. Doctors consistently win about 50 percent of the cases which experts believe the plaintiffs should win."
- "Fourth, the poor success of malpractice plaintiffs in these cases strongly suggests the presence of factors that systematically favor medical defendants in the courtroom. The most promising explanations for that advantage are the defendant's superior resources, the social standing of physicians, social norms against "profiting" from an injury, and the jury's willingness to give physicians the "benefit of the doubt" when the evidence of negligence is conflicting."
"It is time to stop relying on intuitions and anecdotes when debating jury performance," Prof. Peters concludes, as he explores the implications of his research for trial presentation and for public policy. He's right, but his advice may not take hold very soon. It seems more likely that we'll keep stubbornly misunderstanding juries, even as we accuse them of stubbornly misunderstanding us.
The full text of the paper, titled simply "Doctors & Juries," can be downloaded free at SSRN.
(Photo by Striatic at http://flickr.com/photo_zoom.gne?id=229529792&size=m; license details there.)
