Tuesday, February 22, 2011

More on S33/MedMal

From the comments of earlier post on S33 is the following report on medical malpractice cases that went to trial in NC over the past decade, from Chris Nichols who blogs at nctriallawblog.com. It is very interesting to look down the list of cases and see that many are won by the defendant, quite a few by the plaintiff, with tremendous variation in the amount of the award in won by plaintiff. I believe this report is only those cases that are tried and doesn't capture those that are settled.

Again, the big picture facts of medical malpractice from the best national studies are:
  • 4 in 10 suits filed are done so when there is no medical error (many of these are dismissed or are lost by the plaintiff at trial)
  • only 1 in 20 cases of actual negligence result in a lawsuit being brought.
  • These two factoids and many other links are backed up here.
While I suspect I think the overall medical malpractice system is more in need of reform (I don't think it does anything well) than does Mr. Nichols, I think the evidence is on his side in claiming the situation in North Carolina is 'not a crisis.'

One random aside about this issue. When I teach undergrads at Duke in a health policy class with many pre-meds, they worry a great deal about someday being judged by a jury filled with ordinary people, who will not be experts on evidence, medical care and the like. When I ask them if they are bothered by the fact that the same jury pool--again, not likely to have expertise in serology, forensics and the like--on which many criminal felony trials turn, they are not bothered that such persons deprive others of their liberty. I think that just means that Duke undergrads can imagine being a defendant in a medical malpractice case, but cannot imagine being one in a violent felony, for example. The bed rock of our judicial system is that normal people decide. I could be in favor of medical courts for malpractice, but shouldn't all the worries that lead there, also lead me to worry about juries deciding criminal cases?


  1. This is an excellent point that I haven't considered or even seen discussed before. We need to distinguish clearly between two kinds of reforms: a jury of experts rather than peers to determine guilt, and reforms on the awards permitted for malpractice verdicts. Perhaps the experts, following clear rules, should decide the size of the award but not guilt?

    In any case, your argument actually moves me to be more in favor of education specifically designed to improve citizens' ability to render reasonable verdicts. Key here is education in the appropriate use of statistics.

  2. Jonathan
    You could also imagine a system in which experts weighed in on damages and also what sort of remediation (if any) might be appropriate for a provider found to be negligent. Perhaps punitive, but also what steps could help make an error less likely to occur again