TWENTY YEARS OF EVIDENCE ON THE OUTCOME OF MALPRACTICE
Two decades of research on the outcome of medical malpractice claims show somewhat surprising results and correlation with the quality of care as judged by other physicians.
1.Physicians win eighty percent (80%) to ninety percent (90%) of jury trials if plaintiffs’ evidence of medical evidence is judged as “weak” by other physicians’ reviews; approximately seventy percent (70%) of the borderline cases, and even only as much as fifty percent (50%) of the trials with strong evidence of medical negligence. Jurors appear to be even more critical of the plaintiffs’ evidence of medical negligence than medical reviewers who review the records as soon as a case is presented to the insurers! Thus, jurors are very likely to give the physician the benefit of the doubt when experts on both sides are credible. Jury instructions support that result: The burden of proof of a breach of the standard of care is on the plaintiff.
2.With settlements vs. trials, the likelihood and size of a settlement/verdict sometimes have more to do with the strength and quality of the plaintiff’s evidence on breach of the standard of care than on the actual damages. This is counter-intuitive, but provides insight into jury behavior.
3.On the other hand, “defensibility” of a medical negligence case is often determined by the doctors’ insurance carrier early on in the case. Early assessment in the doctors’ favor usually prevents early settlements, but also tends to undervalue cases. It is often difficult to change the assessment even as convincing evidence is produced in discovery, including when expert witnesses are deposed prior to trial.
4.The vast majority of medical malpractice claims are dismissed by the claimant or the claimants’ attorney before any settlement or verdict. And physicians win in trial in the majority of the cases that are tried. (Cases with strong evidence of substandard care are likely to get settlement offers.)
5.Physicians must consent in writing to any settlement in excess of $30,000.00 in California. Such settlements are reported to the Medical Board and to hospital staff privilege committees and insurance company underwriting departments to set rates for premiums. Doctors trying to avoid reporting requirements or even due to ego, are not willing to consent whether the case is settled or tried – at times, very unreasonably.
6.Experience has shown that settlements can also be delayed for a year or more to “kick the can down the road” for reasons that benefit the physician in terms of timing, but have nothing to do with the merits of the case. In this fault-based system of compensation for those injured by the negligence of a healthcare provider, the better and more experienced plaintiffs’ counsel is, and the more credible the evidence of negligence is, the better for the plaintiff.
7.We recommend early review by medical experts to sort out cases that are unlikely to yield a settlement or verdict.