Proposal to Provost’s Common Fund
Profiling and Understanding Medical Malpractice Litigation
Neil Vidmar, Duke Law School and Paul D. Lee, Duke Medical School March 19, 2004
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Profiling and Understanding Medical Malpractice Litigation Neil Vidmar, Duke Law School And Paul D. Lee, Duke Medical School
This proposal involves a collaborative, multi-disciplinary research project involving Neil Vidmar of Duke Law School and Paul Lee of Duke Medical School. Dr. Gerald McGwin at the School of Public Health, University of Alabama, Birmingham (statistician) will serve as our collaborator. The research aim is to provide a detailed profile of medical negligence claims, the costs of these claims and the process and outcomes of litigation for a period of twelve years ranging from 1990 through 2001. While prior medical malpractice crises have been well-studied, the nature of the most recent crisis and underlying issues have heretofore proved elusive to researchers, but they are critical to understanding a societal problem of great policy importance for American society. Further, we seek to place the findings into a context that will allow examination of the validity of the perspectives of the key parties in the dispute as a way of illuminating potential approaches to addressing the problem. The research efforts under this proposal are expected to lay the groundwork for applications for additional funding from the Robert Wood Johnson Foundation or the Law and Social Sciences Division of the National Science Foundation. In a recurring pattern of about ten-year cycles a “crisis” in obtaining affordable medical liability insurance develops, a crisis that is intimately tied to medical malpractice litigation. The crisis has major consequences for our health care system and for the American public. First, physicians in many specialties and in many geographic areas are experiencing serious problems in obtaining or affording medical liability insurance. Second, during the past two years highly contentious legislative hearings have been held in numerous states (including but not limited to Florida, North Carolina, Mississippi and Pennsylvania) as well as by a Congressional House subcommittee. These hearings have been held in an attempt to understand the problem and to devise solutions to the insurance crisis. The problems involved in this debate are very serious ones having far reaching consequences on the costs and access to health care and the interests of persons who suffer injuries as a result of medical negligence. Yet the debate between opposing
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groups is more often filled with angry rhetoric and unsubstantiated claims than with sound arguments based upon an accurate picture of what actually occurs when a patient makes a claim against a medical provider. Health care providers and business organizations blame the nature and operation of the American tort system as the principal culprit behind the problems.1 Proponents of reforms believe that juries favor plaintiffs and give verdict awards that exceed the amount necessary to compensate plaintiffs who are actually injured from medical negligence. Further, the critics argue that these verdicts force insurers to settle frivolous lawsuits out of fear of jury awards and in others settling cases for far more than they are worth. This is called the shadow effect of jury awards. Finally, critics believe that the contingent fee system provides a “lottery” effect that also contributes to the filing of frivolous lawsuits. In contrast, consumer groups and the plaintiff’s bar argue that the problem is not with the tort system but rather with the high incidence of medical mistakes that lead to claims.2 Moreover, proponents of the current system believe that rising malpractice premiums and underwriting/coverage decisions have more to do with poor investments and with factors associated with the business cycle that affects liability insurers’ profits than with rising claims and the size of awards.3 The problem of medical negligence lawsuits has been investigated by many researchers, including one of the authors of this proposal.4 However, that research has been handicapped by limited information about the incidence of claims, the costs of litigating these claims- and how these factors have changed over time, particularly with respect to the most recent “crisis.” There are several reasons for this lack of information. Many settlements between claimants and doctors are confidential, whether they occur prior to a lawsuit being filed or after a jury verdict. When insurers and others do provide public data about costs and payouts it is presented in summary
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See, e.g. Lawsuit Hell, NEWSWEEK, December 15, 2003, especially 46-48. Linda Kohn, Janet Corrigan and Molla Donaldson, eds., TO ERR IS HUMAN: BUILDING A SAFER HEALTH CARE SYSTEM, Institute of Medicine ( 2000); Lucian Leape, Institute of Medicine Medical Error Figures Are Not Exaggerated, 284 JOURNAL OF THE AMERICAN MEDICAL ASSOCIATION 95 (2000). 3 Center for Justice and Democracy, THE EIGHT BIGGEST MYTHS ABOUT MEDICAL MALPRACTICE—AND HOW TO RESPOND (2004). 4 See, e.g. Neil Vidmar, MEDICAL MALPRACTICE AND THE AMERICAN JURY (1995); Vidmar, Tort Reform and the
Medical Liability Insurance Crisis in Mississippi: Diagnosing the Disease and Prescribing a Remedy 22 MISSISSIPPI COLLEGE LAW REVIEW 9 (2002); Frank Sloan et al. SUING FOR MEDICAL MALPRACTICE (1993);
Stephen Daniels and Joanne Martin, CIVIL JURIES AND THE POLITICS OF REFORM (1995).
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statistics that do not allow breakdowns of what occurs by types of cases. Jury verdict data used by some interest groups are often biased and unreliable. The proposed research will be able to rectify these deficiencies by merging two large databases from the state of Florida. The first Florida database involves over 70,000 closed claims reported to the Florida State Department of Health dating back to 1975.5 Under Florida law medical liability insurers are required to report detailed information about the claims made against their insured health care providers.6 The information includes, among many other variables: information about the severity and nature of the injury allegedly suffered by the claimant; the particular health care provider and medical care provided; the medical specialization of the provider; when and at which stage of the litigation process the claim was settled; how the claim was settled; and the amounts paid to lawyers to defend the claim as well as the amount, if any, eventually paid to the claimant. The data also provide insights about the amounts that are awarded for “pain and suffering,” one of the most controversial aspects of jury awards. The second data set involves a set of 854 jury verdicts in medical malpractice trials from 1990 through 2002 that are compiled in a legal data base maintained by Westlaw. Prior research has shown this latter data set to be reasonably comprehensive of jury verdicts, including cases in which the doctor prevailed.7 These data give details about the issues at trial and in many instances also provide information about the “pain and suffering” components of awards as well as the amounts awarded for economic losses. We have now linked these jury verdict data with the Florida Department of Health data base. This linking will provide a unique opportunity to uncover how cases are resolved throughout the continuum of the legal process, especially settlements either before or after a verdict. Thus, for example, we will be able to assess the true nature of payments after initial verdicts are reached. Researchers have long known that jury verdicts frequently do not reflect the
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This data base has been used in previous studies, see, e.g. Nye et.al. The Causes of the Medical Malpractice Crisis: An Analysis of Claims Data and Insurance Company Finances 76 GEORGETOWN LAW REVIEW 1495 (1988); Sloan et al., SUING FOR MEDICAL MALPRACTICE (1993); Studdert et al. The Jury is Still In: Florida’s Birth-related Neurological Injury Compensation Plan , 25 J. OF HEALTH POLITICS, POLICY AND LAW 499 (2000). 6 Governor’s [Florida] Task Force on Medical Malpractice, REPORT ON MEDICAL MALPRACTICE (2003). 7 Vidmar et al., Jury Awards for Medical Malpractice and Post-verdict Adjustments of Those Awards 48 DEPAUL L. REV. 265 (1988). See also, Vidmar and Rose, Punitive Damages; In Terrorem and in Reality, 38 HARVARD JOURNAL ON LEGISLATION, 489 (2001).
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amount of money that the plaintiff actually receives. In some cases, for instance, there are multiple defendants, some of whom may settle without a jury trial while the other defendant goes to trial. One consequence of this scenario may be that plaintiffs who lose at trial actually do not come away empty-handed.8 On the other hand, cases that produce large jury verdicts that make the news often are quietly settled for substantially less than the verdict. By cross-referencing the data bases we can make estimates of reliability of the data that are reported and better understand any systemic biases that may be present. In addition to information about the substantive claims, analysis of the merged data will allow us, for the first time, to obtain an actual estimate of the costs of litigation for the defendants on a case by case basis, including cases in which the claimant eventually received nothing. Our preliminary analyses of the merged data bases indicate that a very substantial number of cases are settled with a payment to the claimant without a lawsuit ever being filed. Some of these cases involve very serious injuries or death and the payments are very substantial. In addition, despite that fact that Florida has legislation requiring neurological birth injuries to be diverted to a non-legal forum there appear to be a substantial number of cases that eventually result in jury trials.9 These preliminary insights, if explored in more detail, can have great importance for the controversy about reforms to the legal system. As an example, the perspective of physicians and insurers is that there has been a large increase in paid claims, while that of the plaintiff’s bar and consumer groups is that there has not been a significant increase in the size of jury awards when adjusted for inflation. Both perspectives could be accurate, but misleading when viewed in isolation. The above discussion only touches upon a small fraction of the issues that will be investigated in these combined data sets. However, before we can truly begin to mine the data we need to further validate the their reliability, a process that includes labor-intensive cross-checking of the files and, in some instances, seeking additional sources to verify that reliability. When completed we will apply the same methods to data collected by the North Carolina Administrative
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Vidmar, MEDICAL MALPRACTICE AND THE AMERICAN JURY (1995) at 33.
See also Studdert, supra , note 4.
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Office of the Courts to develop a comprehensive profile of verdicts and settlements in North Carolina. Similar data bases may also exist in Texas, offering even greater opportunities. This project is truly interdisciplinary and cross-discipline in nature. It requires expertise about the litigation process as well as medical expertise to understand the nature of the medical injuries and the providers of the services. Before we can apply for external funding for these projects we need to complete the merging of the data sets and assess the reliability of the data, a time-consuming and labor-intensive task. We will also endeavor to bring additional Duke faculty members from various schools and units to participate in the research. It is important to emphasize, however, that on the basis of our preliminary research, we expect that with support from the Provost’s Common Fund we will be able to produce at least two scholarly articles within the next year that will describe the main outlines of the litigation process and fill in many of the gaps missing from the picture of medical malpractice litigation. These articles will aid in our applications for outside funding. Nevertheless, the articles will have value in their own right. We expect the results to be of interest to the general public as well as concerned professionals in the fields of medicine and law. By empirically assessing the current presumptions of interested parties, we will be able to provide critical evidence to guide policy discussions about resolving not only the current crisis but also, hopefully, lessen the chance of future crises.
Brief Biographies
Neil Vidmar, Ph.D. Neil Vidmar is Russell M. Robinson II Professor of Law at Duke Law School and holds a secondary appointment in the Psychology Department at Duke. He received his Ph.D. in social psychology from the University of Illinois in 1967 and joined the Psychology Department at the University of Western Ontario in Canada in that year. He remained at Western Ontario until his appointment at Duke Law School in 1987. Professor Vidmar is co-author with Valerie Hans of JUDGING THE JURY (1986), author of MEDICAL MALPRACTICE AND THE AMERICAN JURY (1995) and editor/author of WORLD JURY SYSTEMS (2000). He has written over 100 articles, chapters and reports that include the following subjects: the jury system; small claims courts; the Ontario Business Practices Act; exemplary damages; independent para-legals; rights consciousness; dispute resolution; procedural justice; privacy; reliability of eyewitnesses; attitudes toward the
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death penalty; bias in the ABA ratings of judicial candidates and battered woman syndrome. With his co-investigator, Professor Shari Diamond of the American Bar Foundation and Northwestern Law School, he was engaged in a study of civil juries in Arizona, carried out in conjunction with the Pima County, Arizona Superior Court and supported by the National Science Foundation and the State Justice Institute. That project videotaped the actual deliberations of 50 civil juries and is providing unprecedented insights into how juries perform their duties. He also lectures on judging scientific evidence for judicial education programs in the United States and Canada. Vidmar has testified or consulted as an expert on jury behavior for trials in the United States, Canada, England, Australia and New Zealand. He was lead drafter of an amicus brief in Kumho Tire v. Carmichael (1999), a leading Supreme Court case involving expert evidence, and co-drafter of an amicus brief on punitive damages submitted in the Supreme Court case of State Farm v Campbell(2003). He also offered evidence in Best v. Taylor Machine (1997), an Illinois constitutional case involving medical malpractice tort reform. His work on trial prejudice in Canada was utilized in a leading case involving aboriginal rights, R.v. Williams (1998), that was decided by the Supreme Court of Canada. His national and international research on pretrial prejudice is documented in Case Studies of Pre-and Mid-trial Prejudice in Criminal and Civil Litigation, 26 LAW AND HUMAN BEHAVIOR 73 (2002) and in “When All of Us are Victims: Juror Prejudice and “Terrorist” Trials 78 CHICAGO-KENT LAW REVIEW 1143 (2003). In criminal cases most of his testimony and consulting has been for defendants, but on several occasions he has also assisted the prosecution. In civil cases his testimony or consulting activities have been about equally divided between plaintiffs and defendants. Defense clients have included physicians in medical malpractice cases and large corporations.
Paul P. Lee, MD., JD. Paul P. Lee, MD, JD, is the James Pitzer Gills III and Joy Gills Professor of Ophthalmology at Duke Medical Center, Senior Fellow in the Duke Center on Aging and Human Development, and part of the Health Services Program at RAND, Santa Monica, CA. He is Medical Director and an active clinician, surgeon, and teacher in the Department of Ophthalmology. National service activities include the Board of Trustees of the American Academy of Ophthalmology, the Writing Committee for the board re-certification examination and Associate Examiner for the American Board of Ophthalmology, the Socioeconomics and Health Services Section Editor for the Archives of Ophthalmology, and the Editorial Boards of Evidence-Based Eye Care and the Chinese Journal of Ophthalmology. Community service activities include Board of Directors involvement for the Center for the Partially Sighted in Santa Monica, CA, and the Blind Children’s Center in Los Angeles, CA. Professor Lee was a Phi Beta Kappa graduate of the University of Michigan, an AOA graduate of the University of Michigan Medical School, and a Stone Scholar at the Columbia University School of Law. After completing his internship in internal medicine at the Beth Israel Hospital in Boston, he completed his ophthalmology residency at the Wilmer Eye Institute at Johns Hopkins Hospital. From there, he completed his glaucoma fellowship at the Massachusetts Eye and Ear Infirmary. He then joined the faculty at the Doheny Eye Institute, University of Southern California and the consulting staff at RAND, for 6 years, before joining the faculty at Duke University Eye Center in 1997.
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Dr. Lee is an internationally recognized academician in eye care delivery and glaucoma. He has published numerous peer-reviewed journal articles and book chapters., He is the Socioeconomics and Health Services Section Editor for the Archives of Ophthalmology and serves on the Editorial Boards of Evidence-based Eye Care and the Chinese Journal of Ophthalmology. He has led scientific investigations into why patients lose vision, the quality of care, patient-centered care, quality of life, health care delivery workforces, and the impact of financial and other factors on care delivery. His team was recently awarded an NEI grant to investigate methods of enhancing the ability of eye doctors to provide care for patients with diabetes, together with an NIA grant to understand how patients use (or do not use) health care services. Dr.Lee is Medical Director and an active clinician and surgeon in the Ophthalmology department at Duke, having been recognized as one of our physicians who is among the “Best Doctors in America” and “America’s Top Doctors.” He serves as a Trustee on the Board of the American Academy of Ophthalmology and serves in several capacities for the American Board of Ophthalmology. He is also on the Board of Directors of the Center for the Partially Sighted in Santa Monica, CA, and the Blind Children’s Center in Los Angeles, CA.
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