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Abstract:
Legislation is pending in both houses of Congress to transfer medical malpractice cases from civil juries to administrative health courts. The Institute of Medicine also wants to take malpractice cases away from juries through a system of binding early settlement offers. Each of these proposals is premised on the assumption that juries lack the capacity to resolve medical malpractice disputes fairly. This Article evaluates that premise. It collects and synthesizes three decades of empirical research on jury decision-making, updating the seminal review done by Neil Vidmar over a decade ago.

Four important findings emerge from the data. First, negligence matters. Plaintiffs rarely win weak cases. They have more success in toss-up cases, and fare best in cases with strong evidence of medical negligence. Second, jury verdicts are most likely to square with the opinions of experts hired to evaluate the jury's performance when the evidence of provider negligence is weak. This is the very set of cases that most worries critics of malpractice litigation. Juries agree with expert reviewers in 80 to 90 percent of these cases - a better agreement rate than physicians typically have with each other. Third, jury verdicts are much more likely to deviate from the opinion of an expert reviewer when there is strong evidence of negligence. Doctors consistently win about 50 percent of the cases which experts believe the plaintiffs should win. Fourth, the poor success of malpractice plaintiffs in these cases strongly suggests the presence of factors that systematically favor medical defendants in the courtroom. The most promising explanations for that advantage are the defendant's superior resources, the social standing of physicians, social norms against "profiting" from an injury, and the jury's willingness to give physicians the "benefit of the doubt" when the evidence of negligence is conflicting. From the perspective of malpractice defendants at least, jury performance is remarkably good.

doctors, doctor, physicians, physician, juries, jury, medical malpractice

Abstract:
The enclosed Article is the first comprehensive synthesis of two decades of empirical research on medical malpractice settlement. The portrait that emerges from this synthesis is both more reassuring and more complex than popular portrayals. Although the fit is not perfect, the merits generally drive the settlement process. Weak claims consistently fare the worst, toss-ups cases do better, and strong cases have the most success.

Prior scholarship on malpractice outcomes has understated the strength of this correlation because it has focused principally on the impact of negligence on the settlement rates and has largely ignored the importance of settlement amount. The studies examining the relationship between settlement rate and case quality have invited mixed reactions because they have found a correlation that, while strong, leaves room for improvement. In 10-20 percent of the weakest cases, the plaintiff receives a settlement payment. In a similar fraction of the strongest cases, the plaintiff recovers nothing.

Yet, settlement rates, standing alone, paint a misleading picture. Equally important is the relationship between the strength of the plaintiff's case and the size of the payment received in settlement. As long as the payments received by the plaintiffs in weak and toss-up cases are appropriately discounted to reflect case quality, then settlement of the case is fully consistent with fair treatment of the defendant. For that reason, settlement rate data inherently overstates the prevalence of error. Settlement size must be considered as well.

In malpractice litigation, the amount paid to settle a case is routinely adjusted to match the strength of the plaintiff's case. Although only a few studies have collected this data, they show that payments in weak and toss-up cases are heavily discounted. In fact, the data on settlement size suggest that defendants are able to extract an even deeper discount than is warranted by the merits. The ability of insurance companies to extract this discount suggests that malpractice defendants enjoy a systematic advantage in bargaining power. Although the source of this asymmetry has yet to be determined, the studies justify several interesting hypotheses.

malpractice, medical, settlement, bargaining power

Abstract:
This ten-page essay explores the dilemma that tort law's
risk-utility analysis poses for people who have incomplete
information about anticipated risks and benefits. When actors
have incomplete information, their reasonable risk-utility
estimates are likely to vary considerably.

One possible implication of this range of reasonable risk-utility calculations is that each calculation with the range is equally defensible. To the extent that culpability is defined using risk-utility analysis, the notion of a range of reasonable choices, therefore, would soften the demands of negligence law by treating a wider range of decisions about accident avoidance as reasonable.

It is equally possible, however, that juries will limit the actor's freedom to choose within this range of uncertainty. They may feel that a defendant facing factual uncertainty should err in favor of safety. If so, juries could insist (and may already insist) that commercial actors invest at the upper end of the range. In that event, the obligation to take precautions in the face of factual uncertainty may yield a more robust obligation to take precautions than would have existed if the true risks and utilities had been known ex ante.

The crucial normative question, of course, is whether juries should be allowed to limit the range of otherwise reasonable choices in this manner. On this issue, scholars and courts are likely to disagree. However, the debate cannot begin until we recognize and acknowledge the important implications of ex ante factual uncertainty. Prompting that recognition is the purpose of this essay.

tort, risk-utility

Abstract:
Over the past quarter of a century, more than a dozen studies have collected data on malpractice settlements. With only one exception, they have consistently shown that plaintiffs with strong cases are more likely to receive a settlement payment than plaintiffs with weak cases. Moreover, the data on malpractice settlement strongly suggests that liability insurers possess a palpable advantage in bargaining power.

the fairness of malpractice settlements, philip g. peters, jr., medical malpractice, malpractice settlements, liability, liability insurers, professional claims adjusters, damages, settlement value, law, precedent, double discounting, quality of care, frivolous claims, bargaining power, disagreement

Abstract:
While several studies have examined rates of malpractice claims at state levels, there is little systematic work looking at variations of claiming rates within a state. This study reports on small area variations in malpractice claims rates within New York State over a 14 year period. Counties with high rates generally had high rates over the entire period, while counties with low rates maintained low rates. Rates across counties varied considerably, with an almost 5 times difference between the rates for the lowest county and the highest county. In a multivariate analysis of potential factors influencing a county's rate, median family income was one of the strongest factors positively associated with the claims rate. A measure of the risk of hospital admissions for an adverse outcome also had a strong association with the county's malpractice claims rate, but the risk factor was negatively associated with high claims rates, perhaps suggesting an association with quality of care and malpractice claims. The number of lawyers per capita was weakly, but positively, associated with the claims rate.

Abstract:
This Article undertakes the first detailed critique of the proposal from Common Good and the Harvard School of Public Health to replace medical malpractice jury trials with adjudication before specialized health courts. Professor Peters concludes that the modest benefits likely to be produced by the current health court proposal are matched by the risks of bias and overreaching that these courts would also present. Missing from the plan is the doctrinal change mostly likely to improve patient safety - hospital enterprise liability. Without enterprise liability, the health court proposal is unlikely to achieve its patient safety goals and, as a result, simply does not offer sufficient benefits to justify the risk.

Abstract:
The health care industry has changed fundamentally in the century that has passed since physicians were first delegated the unique power to establish their own legal standard of care. Consequently, it is not surprising that many courts are abandoning their deference to medical customs and, instead, are empowering juries, with the help of experts, to decide what a reasonable physician would have done under the circumstances. However, the prospect of a wide-spread retreat from the custom-based standard of care has fundamental policy implications. On the one hand, abandonment of the custom-based standard will improve the ability of courts to police the practices of physicians toiling in the shadow of managed care. On the other hand, it may demand more of lay jurors than we can reasonably expect of them. It may also threaten efforts to make health care more affordable.

This Article explores the policy issues raised by the choice between a custom-based standard of care and a jury-determined reasonability standard. The author examines not only traditional legal arguments but also the recent findings of cognitive psychology, jury performance studies, and health industry research. Not surprisingly, this analysis reveals that both options are imperfect. However, the author cautiously recommends the reasonable physician standard. The revolutionary transformation of the health care industry in last quarter of a century has transferred considerable power from physicians to the health insurance industry, an industry that has not yet earned the privilege of self-regulation. Unlike the custom-based standard, the reasonable care standard assigns the task of standard-setting to representatives of the community and not to the regulated industry. And because the reasonable physician standard precludes unilateral establishment of the standard of care by the health care industry, it is also more likely to force the health care industry to engage the community in a conversation about health care cost and quality. For these reasons, it worth taking the risk that juries will be more resistant to cost control measures than health policy analysts would recommend.

Abstract:
Nearly all of the state and federal laws that treat embryos as persons contain a fundamental ambiguity. Contrary to common belief, there is no "moment" of conception. Instead, conception is a forty-eight hour process, during which the haploid genomes of the sperm and egg are gradually and precisely transformed into the functioning diploid genome of a new human embryo. During that two-day period, many common clinical and laboratories activities take place, including the culling of unsuitable embryos, the freezing of others, and the testing of embryos for genetic abnormalities. The legal status of these activities will turn on the point in the two-day process of conception that is chosen to trigger the life-begins-at-conception laws.

In this Article, I argue that laws triggered by conception should not take effect until the process of conceiving a new diploid embryo is complete. This occurs when the embryonic genome begins to function, roughly forty-eight hours after insemination, at the eight-cell stage. Prior to that, a new human life is being conceived, but has not yet been conceived. Although many people will find this a surprising conclusion, it is consistent with both the gradual nature of the transformation from gametes to embryo and with the goals that the authors of these laws sought to accomplish.

Conception, fertilization, embryo

Abstract:
The health care industry has changed fundamentally in the century that has passed since physicians were first delegated the unique power to establish their own legal standard of care. The turn-of-the century (and naive) paradigm of the independent physician driven only by fidelity to patient interests has given way to modern corporate medicine. Power in the health care industry is shifting away from physicians and toward a heavily concentrated group of for-profit health insurers. In an effort to keep costs down, these entities use a variety of strategies to influence the clinical practices of their participating physicians. Under these circumstances, tort law's complete faith in medical customs is arguably a quaint relic of a simpler time.

Consequently, it is not surprising that many courts are abandoning their deference to medical customs and, instead, are empowering juries, with the help of experts, to decide what a reasonable physician would have done under the circumstances. However, the prospect of a wide-spread retreat from the custom-based standard of care has fundamental policy implications. On the one hand, abandonment of the custom-based standard will improve the ability of courts to police the practices of physicians toiling in the shadow of managed care. On the other hand, it may demand more of lay jurors than we can reasonably expect of them. It may also threaten efforts to make health care more affordable.

This Article explores the policy issues raised by the choice between a custom-based standard of care and a jury-determined reasonability standard. The author examines not only traditional legal arguments but also the recent findings of cognitive psychology, jury performance studies, and health industry research. Not surprisingly, this analysis reveals that both options are imperfect. However, the author cautiously recommends the reasonable physician standard. The revolutionary transformation of the health care industry in last quarter of a century has transferred considerable power from physicians to the health insurance industry, an industry that has not yet earned the privilege of self-regulation. Unlike the custom-based standard, the reasonable care standard assigns the task of standard-setting to representatives of the community and not to the regulated industry. And because the reasonable physician standard precludes unilateral establishment of the standard of care by the health care industry, it is also more likely to force the health care industry to engage the community in a conversation about health care cost and quality. For these reasons, it worth taking the risk that juries will be more resistant to cost control measures than health policy analysts would recommend.

Abstract:
No tort reform has more potential to improve the quality of medical care and to reduce the frequency of patient injuries than exclusive hospital enterprise liability. Hospital enterprise liability would make hospitals liable for all patient injuries occurring in the hospital that are the product of provider negligence, regardless of the independent contractor status of the providers. In its "exclusive" form, enterprise liability would also eliminate the personal liability of individual physicians and nurses.

Exclusive hospital enterprise liability has the potential to revive the dormant deterrent power of tort law. The reasons are simple. Unlike individual physicians, hospitals are experience-rated repeat players who have the vantage point and the resources needed to recognize and implement systematic improvements in the process of delivering health care. Adoption of enterprise liability would align the incentives of tort law with the goals of modern patient safety advocates who emphasize the need to shift our focus from the blaming of individual wrongdoers to the design of systems that anticipate and prevent human error. Exclusive enterprise liability would also reduce the disruption caused by the insurance cycle, spare high-risk specialists from shouldering a disproportionate share of health care's liability costs, reduce litigation costs that arise in multi-defendant lawsuits, and dampen the extraordinary anger of practicing physicians. The time has come to adopt hospital enterprise liability.

Abstract:
Modern health care is delivered by large teams of highly trained individuals in a complex web of interaction that demands coordination and oversight. For this reason, the traditional model of malpractice liability, in which the individual caregiver is liable, is outmoded: medical errors often are the result of system failures, and systemic changes best address these problems. For this reason, a robust regime of hospital vicarious liability has more potential than any other malpractice reform to realign the deterrent power of tort law with the goal of patient safety.

vicarious liability, tort law, evidence-based medicine, hospital enterprise liability, malpractice

Abstract:
Critics of medical malpractice litigation believe that expert testimony is often anecdotal and biased. To remedy this problem, several have recently suggested that attorneys should provide and courts should seek reliable empirical evidence of actual clinical norms. Their suggestion should be welcomed. If our expectations are realistic and the design pitfalls are avoided, greater use of use of empirical research will improve the fairness of malpractice adjudication. At least in theory, it could be useful in both the "easy" cases (where it reveals that a consensus standard of care exists) and also some of the harder cases (where clinical practices vary).

At the same time, this evidence will make the phenomenon of medical variation - often without any clinical basis - more visible to judges, highlighting the need to give juries better guidance on issues such as the amount of permissible variation around a single norm and the identification of unacceptable schools of thought. Ideally, the new evidence of inexplicable variation in clinical practice will also encourage courts to abandon their conclusive deference to medical custom in favor of a standard of care that makes custom (when it exists) relevant, but not dispositive.

Abstract:
To a remarkable degree, American courts have treated the law of medical malpractice as a distinct branch of tort law. When disputes that would otherwise have been governed by tort rules of general application have arisen in the context of medical treatment, courts have commonly constructed special rules for their resolution. Recent evidence suggests, however, that the era of special rules may be ending.

The Missouri cases noted in this Volume provide the latest clue that courts are less willing to treat medical malpractice claims as sui generis. In all three of these cases, plaintiffs challenged bright-line "no duty" rules created specifically for health law torts. Under one these rules, on-call physicians have no duties until they accept a patient-physician relationship. Under the second challenged rule, physicians have a duty of care in prescribing drugs, but pharmacists do not. The last of the challenged rules held that physicians have a duty to warn patients about drug risks, but that prescription drug manufacturers do not. Missouri courts rejected two of these bright line tests, preferring instead to use tort rules of general applicability, emphasizing flexible concepts like reasonability and foreseeability.

Throughout the country, many of health law's bright-line "no duty" rules are withering. This is consistent with the judicial abandonment of other special rules created for health care torts, such as the custom-based standard of care and the "honest error in judgment" jury instruction. Of course, not every malpractice-specific rule is in jeopardy. However, it seems likely that each will be examined anew for the presence of a convincing policy justification.

Abstract:
In negligence actions, defendants are supposed to be judged by the reasonableness of their conduct at the time that they acted. However, the findings of cognitive psychology warn us that jurors who know the outcome will find it very difficult to assume a foresight perspective. Individuals who know that a bad outcome has occurred tend to evaluate prior conduct more harshly than they would if they were unaware of the actual outcome.

In the decade since the pro-plaintiff implications of this research data have been understood, several proposals have been made for minimizing the impact of the hindsight bias on jury verdicts. The most dramatic include (1) replacing the tort standard of reasonable care with a standard of care that is established ex ante, such as compliance with reliable customary norms; (2) replacement of the traditional tort standard of reasonable care with a good faith standard of care similar to the "business judgment rule" used in corporate law; (3) imposition of a clear and convincing burden of proof on plaintiffs; (4) broader reliance on prospective administrative safety regulation.

This Article contends that lawmakers should respond cautiously to these recommendations for reform. There are three important reasons for resisting the temptation to adopt reforms that, while elegant in theory, are likely to significantly favor tort defendants.

First, the judicial process as a whole and the fact-finding process in particular are each complex processes that favor plaintiffs in some respects and defendants in others. Several attributes of the judicial process already favor tort defendants. For example, many jurors distrust the motives of plaintiffs, few negligently injured persons file suit and some cognitive biases favor defendants. Those advantages may already offset any benefit conferred on plaintiffs by the hindsight biases. In addition, the General Theory of the Second Best reminds us that fixing some imperfections while tolerating others can actually make a situation worse, rather than better.

Second, there are good reasons to doubt that jurors are as vulnerable to the hindsight biases as study subjects. Actual jury trials have higher stakes, more robust facts, individual accountability, and group deliberations. In addition, judges and defense counsel can help to reduce the impact of the hindsight biases by encouraging the jurors to consider alternative causal pathways.

Third, a number of relatively even-handed debiasing reforms can and should be tested before resorting to defense-oriented reforms like deference to custom or administrative preemption. These strategies include bifurcating the trial of liability and damages, re-instituting unanimous verdicts and permitting jurors to take notes and ask questions. In addition, modest changes in judicial communication with jurors could possibly reduce the biases further, including steps such as reminding the jury early and often about the burden of proof, explaining the hindsight bias, and admonishing jurors to discuss the facts before voting. Lawmakers should test these options before thinking seriously about more dramatic reforms that could significantly favor defendants, such as altering the standard of care or making greater use of regulatory preemption.