Friday, February 23, 2007

Empirical Studies on Juries, Malpractice

Various commentators have pointed to two counties in Illinois as particularly bad for med mal defendants, dubbing them "judicial hellholes." News stories reported that the runaway malpractice juries were responsible for dozens or scores of doctors leaving those counties.

Neil Vidmar and colleagues examined these claims empirically. Their results are summarized in Neil Vidmar, Russell M. Robinson II & Kara MacKillop, "Judicial Hellholes:" Medical Malpractice Claims, Verdicts and the "Doctor Exodus" in Illinois, 59 Vand. L. Rev. 1309-1342 (2006), Westlaw link, LexisNexis link. (The law review article is based on a longer report, Neil Vidmar, Medical Malpractice and the Tort System in Illinois: A Report to the Illinois State Bar Association(2005).) Their conclusions?

The data reported in this Article provide no support for the "hellhole" label. Jury trials and plaintiff verdicts were infrequent, and, since 1992, only two verdicts exceeded a million dollars, one of which was overturned on appeal.

Cook and DuPage counties, which account for almost half of Illinois's population and two thirds of its doctors, experienced no increase in medical malpractice filings between 1994 and 2004. Plaintiff win rates did increase and so did the average jury verdict. * * *

* * * Using official statistics of the AMA and statistics from an independent source, we found absolutely no support for the claims that the net number of doctors in Illinois has decreased. * * *

A postscript to this Article is that on May 25, 2005, after highly contentious hearings, the Illinois legislature passed Senate Bill 475 placing a $ 500,000 cap on the total of all non-economic damages in medical malpractice verdicts. The cap thus includes not only pain and suffering but other elements such as disfigurement, loss of a normal life, consortium, and wrongful death. It is uncertain that the legislation will survive a legal challenge, since prior Illinois case law has stated that these latter elements of damages have economic components. To the extent that the legislative decision was made on claims of tort reform advocates concerning trends in the tort system and an exodus of doctors from Illinois, the bill is based on unsupported empirical foundations.
Id. at 1341-42.

This article is part of a symposium that also includes:
  • James F. Blumstein, Medical Malpractice Standard-Setting: Developing Malpractice "Safe Harbors" as a New Role for QIOs?, 59 Vand. L. Rev. 1017 (2006).
  • David A. Hyman and Charles Silver, Medical Malpractice Litigation and Tort Reform: It's the Incentives, Stupid, 59 Vand. L. Rev. 1085 (2006).
  • Neil Vidmar, Kara MacKillop, and Paul Lee, Million Dollar Medical Malpractice Cases in Florida: Post-Verdict and Pre-Suit Settlements, 59 Vand. L. Rev. 1343 (2006).
  • Shari Seidman Diamond, Mary R. Rose, Beth Murphy, & Sven Smith, Juror Questions During Trial: A Window into Juror Thinking, 59 Vand. L. Rev. 1927 (2006).

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