An exhaustive study¹ recently completed by a Professor at the University of Missouri at Columbia School of Law concludes that juries favor physicians in the vast majority of cases which go to trial.  For those of us who routinely handle medical malpractice cases this is not a shocking revelation.

This most recent study analyzed seven separate studies conducted during the so-called malpractice crises in the mid-1970’s, the mid-1980’s and early 2000.  The conclusions reached are as follows:

1. The win rate for medical malpractice plaintiffs is roughly 30% of all jury trials.
   
   
2. The odds of a plaintiff’s verdict increase as the evidence of negligence is stronger.  When the evidence is considered weak (cases were reviewed by independent physicians) the plaintiff wins only 10-20% of the time.  However, when the evidence of negligence on the part of the physician is strong, the plaintiff wins only 50% of the time.  This shows that even strong cases of negligence have only a 50% chance of success.
   
   
3. The empirical literature does not support the widely held belief that juries are biased in favor of injured plaintiffs and are easily manipulated by plaintiff’s lawyers.
   
   
4. 70% of the cases rated as toss-ups by independent reviewers are won by the defense.

The study further argues that if there is jury bias, it is most likely in favor of the medical defendant.  This is due in part to media campaigns associated with the malpractice crisis and the reluctance to reward a plaintiff, even one who is badly injured, from profiting from that injury.

Other factors which lead to verdicts favoring defendants is the recognition that malpractice cases are in essence a lawsuit by an ill patient against a medical provider who was trying to cure the patient.  The study also states that frequently the defense has more experienced lawyers and access to better medical experts.  Also, the burden of proof rests with the plaintiff.  If the experts are equally credible, jurors find it difficult to reward the plaintiff and would, therefore, render a verdict in favor of the defendant.  The so-called battle of the experts is often won by the defense.

The study concludes by stating what plaintiff’s attorneys deal with everyday – that physicians are typically given the benefit of the doubt when the experts are credible, and that juries are skeptical of patients who sue their doctors.

The lessons to be learned from this compilation and analysis are that the plaintiff attorney must carefully review and evaluate cases before they are accepted.  Weaker or marginal cases must be declined.  Cases which are accepted must be exhaustively analyzed and well-funded by highly trained and competent experts.

¹This study was published in the May 2007 issue of the Michigan Law Review.