What Everyone Knows about Medical Malpractice

JAMES J. KILPATRICK

February 04, 1993|By JAMES J. KILPATRICK

Charleston, South Carolina. -- Everyone knows about the damages that juries award for medical malpractice.

Everyone knows that juries really wallop defendant doctors.

Everyone knows that a typical verdict is for millions of dollars.

Maybe we ought to look again at what everyone knows. A study conducted under the auspices of the Duke University Law School questions the conventional wisdom. It turns out that at least in North Carolina, the situation is not exactly what everyone knows.

The study, recently reported in Judicature magazine, was undertaken in this fashion. Students gathered information on every medical malpractice suit filed in North Carolina over a three-year period from 1984 to 1987. There were 895 of them. These data then were supplemented by a sample of 300 suits filed between 1987 and 1990, making 1,195 cases in all.

Of the 1,195 cases, only 117 actually went to trial. All the others were settled out of court, and in nearly 500 cases, the plaintiffs got nothing.

What happened? A jury awarded $3.9 million to a child who suffered terrible brain damage at birth. An adult who suffered permanent paralysis after heart surgery won $1 million. In two cases involving anesthesiologists, juries granted damages of $1.28 million and $750,000.

That was about the size of it. The next largest award was for $300,000. This was the remarkable finding: The median award -- not the average award, but the median award -- was only $36,500.

The authors of the Duke study concede candidly that North Carolina's experience may not be typical, but other evidence suggests a trend is taking shape. The National Law Journal last month published a study of jury verdicts in 1992. The editors concluded that in many parts of the country, ''awards for medical malpractice slid downward.''

All kinds of data confuse the issue. In 1985 a study by Jury Verdict Research put the average malpractice award -- not the median, but the average -- at $962,000. For 1990, the study reports that 36 percent of malpractice verdicts were for a million dollars or more. Some juries obviously are more generous to plaintiffs than other juries.

St. Paul Fire & Marine Insurance Co., the nation's largest underwriter of medical malpractice coverage, reports that about 15 claims of malpractice are filed annually per 100 doctors. A much smaller percentage, of course, involve lawsuits. Most of the suits are abandoned or settled out of court. Only a tiny fraction result in humongous awards to the plaintiffs. Maybe doctors, as a class, are not so grossly negligent after all.

The Duke investigators turned up other surprises. In the conventional wisdom, potential jurors are assumed to be biased against doctors. Interviews with jurors, judges and lawyers indicated the conventional wisdom is off again. Jurors often regard the doctor as the victim of a hypochondriacal patient and an ambulance-chasing lawyer. ''We felt so sorry for him,'' said one juror.

Moreover, jurors may be getting hardheaded about the effect of megabuck awards on their own expenses for health care. They figure that insurance companies must pay the winning plaintiffs. The doctors must pay the companies. Eventually, someone must pay the doctors. The juror looks in the mirror and says with Sir Lancelot, ''C'est moi, c'est moi, 'tis I.''

For a different picture, consider the situation in South Carolina. In 1975 South Carolina doctors created their own non-profit joint underwriting association. It has worked phenomenally well, for this reason: The association never settles a claim it regards as unjustified. It goes to court instead. Every time. For even the smallest amount.

As a result of this aggressive policy, only 40 to 50 medical malpractice suits go to trial annually in South Carolina. Plaintiffs win only one-fourth of the time. In one notable case, involving a football player who sued an orthopedic surgeon for $22.5 million, the jury awarded no damages at all.

Anyhow, the upshot is that in most jurisdictions, juries act responsibly, not emotionally. In the most appalling cases of malpractice, they will award huge damages. Such cases are rare. In general, after a lawyer takes his cut from a jury's award, the typical plaintiff may not have a whole lot left.

James J. Kilpatrick is a syndicated columnist.

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