To try or not to try, that is the question for lawyers and providers in medical malpractice cases. The pendulum in medical malpractice litigation has swung towards mandatory mediation for pre-trial resolution. But this trend begs the question: are we trying enough medical malpractice cases? What is the impact on the state of the law, the amount of settlements, and public opinion if there are not enough jury trials to verdict? The analysis to try a case is multifaceted, encompassing the provider, the plaintiff, the facts, and the trier of fact, but there is data available to assess what case is a good trial candidate to maximize reward and impact while mitigating exposure.
By the age of sixty-five (65), seventy-five percent (75%) of physicians in low-risk specialties face a malpractice claim, as compared to ninety-nine percent (99%) of physicians in high-risk specialties (e.g. neurosurgery, thoracic-cardiovascular surgery, general surgery, emergency medicine, etc.), according to a study published in the New England Journal of Medicine.[1] However, the vast majority of malpractice claims are resolved short of jury verdict. [2] Analyzing claims brought in the United States’ seventy-five (75) largest counties, only seven percent (7%) of medical malpractice lawsuits resulted in a jury verdict.[3] Of those verdicts, plaintiffs prevailed only 27% of the time. When a jury decided in favor of the plaintiff, the median award was substantially higher than tort awards in other civil lawsuits, approaching $422,000.00.[4] Thus, while the odds for a defense verdict favors healthcare provider defendants, the stakes for losing a jury verdict tend to be higher in medical malpractice cases.
Selection of trial candidates and successful prosecution of defense theories is key to optimizing outcomes. With the countervailing popular culture theory that runaway malpractice verdicts are bankrupting providers, provider insurance groups, and health systems, selecting the right cases for a successful jury verdict can be a critical tool in the toolbox of the healthcare industry for managing liability and public opinion.
One of the primary selection criteria for identifying a successful trial candidate is, unsurprisingly, the strength of the evidence in favor of the provider’s standard of care. A review of jury verdicts in medical malpractice lawsuits illustrates this: physicians win eighty to ninety percent (80-90%) of the jury trials with weak evidence of medical negligence; approximately seventy percent (70%) of the toss-up cases; and fifty percent (50%) of the cases with strong evidence of medical negligence.[5]
But selection of the “right” candidate for trial is more than just the strength of the evidence. Each case is as unique as the plaintiff and provider involved. Another critical factor in determining the appropriate trial candidate is the trier of fact.
Jury research has given some helpful variables to incorporate into the analysis of what case is the “right” candidate. In general, the amount of jury verdicts tends to correlate with the severity of the plaintiff’s injuries – with the exception that injuries resulting in death tended to result in awards substantially lower awards than plaintiffs with severe or permanent physician injuries such as quadriplegia.[6] Because the greater the degree of permanent physical injury and the degree of impact of that injury on the individual’s quality of life post-injury is a key factor, variables that should be considered in selecting a candidate include: the age of the patient at the time of injury, the scope of injury (e.g. confined to one critical system or appendage or comprehensive throughout the body), the number and age of dependents, and pre-injury earning income, etc.
Another important data set is the prevailing juror attitudes towards damages awards. Studies suggest that jurors want to reach the right result based on the strength of the evidence and view damages’ claims with a healthy degree of skepticism:
…jurors are skeptical of plaintiff claims about damages, especially pain and suffering. They ask whether the claim of injury is as debilitating as the plaintiff claims it is. They discount the injury if the plaintiff did not take steps to mitigate the effects of the injury. They are skeptical about people wanting something for nothing and about the plaintiff lawyers who have an investment in a large award. Despite judicial instructions that they are to ignore whether the plaintiff has health or other insurance to offset financial losses, jurors speculate about whether the plaintiff has insurance…[7]
In considering the jurors’ receptivity to a potential plaintiff’s claims of injury and assessment of recoverable damages, considering the types of questions jurors may ask themselves during jury deliberations is crucial to both trial candidate selection and tailoring trial strategies. Anticipating and providing answers to those questions can give a healthcare provider the edge in case presentation.
The strength of expert testimony in support of the provider’s standard of care and/or causation is critical evidence for a jury at trial. Conventional trial wisdom is that when the provider and patient present with an equal degree of likeability, the case will be won or lost on the battle of the experts. Not leaving that to chance, researchers evaluate how jurors perceive and rate expert witness testimony at trial. One review determined that jurors’ descriptions of credibility of expert witnesses could be summarized in four categories: likability, believability, trustworthiness, and intelligence – with likability being the most significant factor influencing credibility.[8]
In a recent review of forensic science experts presenting evidence in homicide cases, researchers gathered post-trial data via interviews and questionnaires regarding the jurors’ assessment of the experts’ credibility.[9] Jurors ranked years of experience and quality of education more highly than institutional accolades such as lab accreditation.[10] The degree of expert confidence in their opinions and the experts’ demeanor when presenting opinions to the jury had a substantial effect on perceptions of credibility.[11] An expert’s ability to avoid “jargon” or overly “technical terms” and convey concepts through analogies or ways that convey common sense enhanced expert credibility.[12]
The use of demonstrative and visual aids to supplement and explain the expert’s opinions had an amplifying effect on the expert’s credibility.[13] [This correlates to the needs of the “TikTok” generation to have concepts explained either visually or in soundbites that capture their attention and give them grounding issues to argue when released to the jury room for deliberations.] Cases that can be told visually – through photographs, timelines, video reenactments, or other visual aids – may have a greater impact on juries who have grown to expect this effect in aspects of their daily communications. For plaintiffs who have graphic visual representations of physical injury, this can be an immensely helpful tool to promote their story – through both expert and lay witness testimony. Conversely, for providers evaluating potential outcomes at trial, negative visual images and how a jury will react to them must be factored into the analysis of both the defense strategy and the ability of the expert to refute or place into context.
The selection of and presentation of good candidates for a trial to verdict is essential to mitigating plaintiffs’ counsel’s leverage in the pre-trial settlement trend. Defense wins and promotion of those wins can help to shift the balance and public opinion. Assessment of the standard of care issues, causation, the degree and severity of injury, the selection and presentation of experts, and the modes of telling the story to the jury is essential to the success of this strategy. Experience in this area and with these techniques is essential to effectively navigating this landscape.
[1] Jena AB, Seabury S, Lakdawalla D, Chandra A. Malpractice risk according to physician specialty. N Engl J Med. 2011 Aug 18;365(7):629-36. doi: 10.1056/NEJMsa1012370. PMID: 21848463; PMCID: PMC3204310. The authors analyzed medical malpractice claims data from 1991 through 2005. Id.
[2] Vidmar N. Juries and medical malpractice claims: empirical facts versus myths. Clin Orthop Relat Res. 2009 Feb;467(2):367-75. doi: 10.1007/s11999-008-0608-6. Epub 2008 Nov 11. PMID: 19002541; PMCID: PMC2628507.
[3] Id.
[4] Id.
[5] Peters PG Jr. Twenty years of evidence on the outcomes of malpractice claims. Clin Orthop Relat Res. 2009 Feb;467(2):352-7. doi: 10.1007/s11999-008-0631-7. Epub 2008 Dec 2. PMID: 19048355; PMCID: PMC2628515.
[6] See footnote 3 at pg. 371 (citing to Bovbjerg R, Sloan F, Blumstein J. Valuing life and limb in tort: scheduling “pain and suffering.” NW UL Rev. 1989; 83:908-76).
[7] Id. at pg. 372.
[8] S.L. Brodsky, et al. The witness credibility scale: an outcome measure for expert witness research. Behav. Sci. Law (2010).
[9] A. McCarthy Wilcox, N. NicDaeid, Jurors’ perceptions of forensic science expert witnesses: Experience, qualifications, testimony style and credibility. Forensic Science International, Volume 291, 2018, Pages 100-108, ISSN 0379-0738, https://doi.org/10.1016/j.forsciint.2018.07.030.
[10] Id.
[11] Id.
[12] A Precis of the Art and Science of Expert Witness Testimony: a Tribute to the Work and Ideas of Karen Postal. Archives of Clinical Neuropsychology, Vol. 40, Issue 2, March 2025, Pages 190-200, https://doi.org/10.1093/arclin/acae088.
[13] Id.