Challenges in medical malpractice: juries give doctors the “benefit of the doubt”

Research confirms what most medical malpractice attorneys have experienced for many years — the deck is stacked in favor of doctors in medical malpractice lawsuits.

A study published in Clinical Orthopaedics and Related Research examined 20 years of medical malpractice cases and found that the doctor most often wins.  Researchers compared lawsuit outcomes to outcomes predicted by physician reviewers. Remarkably, they found that physicians win 50 percent of the cases that independent reviewers said had strong evidence of medical malpractice.  In other words, they win 50 percent of the cases that they should lose.

This high success rate, according to the study, suggests that more is at play than just the evidence: “Juries may be skeptical of patients who sue their doctors” and “juries tend to give doctors the benefit of the doubt when experts for both sides are credible.” In addition, the study suggests that the defendants are much more likely than plaintiffs to hire experienced attorneys. Obviously, these factors make it difficult for malpractice plaintiffs to win even the strongest of cases.

Why is this study important? Because it goes a long way toward proving that so-called tort reform and caps on malpractice cases are not only unnecessary but unfair. There is no “crisis” of medical lawsuits.

In this environment, where doctors are winning malpractice cases that they should lose, insurers have little incentive to settle even the strongest cases against their doctors. Because of the cap that limits the amount a plaintiff can recover, insurers take the gamble: if they don’t settle and it goes to court, the most they can lose is the cap but they have a 50 percent chance of paying nothing.

That’s why we prepare every medical malpractice case for trial. On my desk today is a case of clear liability with exceptionally strong evidence of malpractice with serious injuries, yet the insurance company has yet to offer to settle. Despite the uphill battle that the research suggests, our experience has been that exhaustive preparation, impeccable expert witnesses and skillful communication to the jury will most often win justice.

That’s another reason this study is important. The experience of the plaintiff’s attorney really matters. All lawyers are not necessarily good trial lawyers. All lawyers, however accomplished, are not necessarily experienced in medical malpractice. With the insurance companies’ reluctance to settle even the clearest cases of malpractice, more and more cases will end up in a jury trial. To succeed in a medical malpractice case at trial, plaintiffs need an attorney who understands the law and the medicine and can effectively communicate both to the jury.