When people are serving on a jury, they need to pay very close attention to the burden of proof. There is often confusion as to the level of certainty required for juries to reach a verdict. Here’s a brief primer. In a civil case, practically everything has to be proven by a preponderance. Preponderance means more likely than not, so we’re looking at a 51% probability, if we were to put this into mathematical terms. Put another way, more likely right than wrong or more probable than not. The next standard of proof is sometimes required in fraud cases.
A recent article from the Justice.org website lists the 10 largest medical malpractice insurance companies that made extremely high profits in 2012. If we are to believe the politicians who claim that medical malpractice lawsuits are the reason medical costs are so high, that tort reform is the “only” thing that can save the medical industry, and that doctors are at some sort of financial disadvantage, how can these companies be so profitable? The answer lies in the truth. Medical costs are not escalating because of the damage payouts to malpractice victims. They’re escalating because medical malpractice insurance companies are charging the doctors too much money and then blaming trial lawyers for the increase in premiums. Cases such as 60 Minutes’ “Jackpot Justice” case in Jefferson County, MS where jurors were allegedly in collusion with five claimants, awarding them $150 million for damages from drug phen-phen, are extremely rare. Yet, politicians and pro-insurance lobbyists hold this one case up as the example for the so-called “need for tort reform.” If anything, increased profits for medical malpractice insurers is the barometer. They show tha t tort reform and recovery caps have only served to enrich the insurers while denying fair compensation to the victims.
A recent study by the National Bureau of Economic Research found that the cost of rising malpractice premiums is not a major contributing factor in affecting the delivery of care to patients. To the contrary, they found weak evidence that physicians are either not entering the field or retiring early due to rising medical malpractice premiums. In other words, the politicians’ claims that we need tort reform to keep doctors from leaving practice is dubious at best. The strongest evidence the study found for malpractice premiums affecting availability of care is the affect of rising premiums on rural doctors. Their study showed that a 10% rise in premiums results in a 1% decrease in rural physicians. That could be a problem, but who is to blame? The victims of the malpractice or the negligent doctor?
Following up on our recent blog post about surgical errors,we find it unlikely that tort reform would benefit the patient population. We’re told repeatedly by politicians who get PAC donations from medical lobbyists that if we could just limit damages in medical malpractice cases, that would reduce the cost of medical care in this country. Wrong. Back in November, we discussed a study published in the July 2000 issue of the Journal of American Medical Association, Volume 284 by Dr. Barbara Starfield of the Johns Hopkins School of Hygiene and Public Health. A striking 225,000 Americans die every year from unforced errors in the medical community, such as being given the wrong drugs, treatments, or procedures. How is medical care going to get better by decreasing accountability? The medical community needs increased accountability for their errors, not less. Less accountability means more medical errors. There are plenty of other industries that have been held accountable and we’ve seen great improvements in safety. If doctors want to fix the medical malpractice crisis, they need to look at the doctors causing the malpractice and the insurance companies who are arbitrarily raises rates.
Jurors need to pay very close attention to the burden of proof in a court case. There is often confusion as to the level of certainty that a juror needs to make a judgment. Here’s a brief primer. In a civil case, practically everything has to be proven by a preponderance, so we’re looking at a 51% probability that an event happened (or did not happen). Put another way, a juror has to decide whether the plaintiff more likely right than wrong. Even another way of saying it is “More likely than not.” The next level of judgment that you encounter is sometimes required in fraud cases. In these cases, we must prove the fraud by clear and convincing evidence.