Things may be changing down at the courthouse.  After years of consistent losses for people suing for medical malpractice, Arizona has recently seen some large jury verdicts in their favor.  There have been more multi-million dollar malpractice verdicts in the last 12 months than there were in many past years combined.  It is unclear whether this is a trend or whether it is just a coincidence.  If it is a trend, it is unclear what is driving it.

Maricopa County Courthouse - Wikipedia

Historically, doctors and hospitals win 85-90% of the cases that get tried in Arizona.  The defense rate of success may be a little higher in the out counties, but not much.  This rate of success is mirrored across most of the states in the nation.  This is true whether the case is a strong one or not.  An easy explanation is that jurors don’t want to believe that doctors and hospitals make mistakes that kill and injure people.  They want to trust the people who take care of them and their families.  When they go to the hospital or to the doctor, they want to believe that they will come out on the other side alive and in good health.

As someone who has represented clients on both sides of malpractice cases for almost 50 years, I can tell you that there are lots of medical mistakes made every day.  Fortunately, most of them don’t result in death or catastrophic injury, but many do.  Very few people who are injured or who lost loved ones to medical malpractice are ever compensated for their losses and, when they are, the compensation is usually woefully inadequate.  So why are juries awarding larger sums to victims recently?  There are a number of theories.

One recent change in Arizona that may be affecting jury verdicts has to do with how we pick juries.  Prior to January of 2022, each side in a malpractice case could strike four of the panelists for any reason at all, so long as it was not a bad reason, such as the race of the panelist.  There were usually not very many panelists who showed sympathy for the plaintiff, at least compared to those who seemed sympathetic to the health care providers.  These peremptory challenges allowed the attorneys for the health care providers to strike anyone they thought might be too favorable to the plaintiff.  Since January 2022, attorneys can only get rid of a panelist, if they can satisfy the judge that the panelist cannot be fair and impartial.  Some observers speculate that this change in jury selection is leaving more jurors sympathetic to plaintiffs on the panel who would not have been there under the old rules.

Another factor, which is widely discussed, is the effect of the Covid pandemic.  This theory holds that people came out of the isolation and restrictive rules of the pandemic angry and distrustful of the health care system.  There is no question that the credibility of the medical profession took a hit in the battles over the best treatments for Covid, the need for masking, and the source of the virus.  In this view, doctors and hospitals are no longer seen as the protectors of society and as tellers of truth who can be relied upon.  Perhaps jurors are taking out their frustrations on defendants in malpractice suits and are no longer willing to give them the benefit of the doubt.

A related argument is that the immense growth of hospital chains, the involvement of private equity in health care, and the purchase of many doctor practices by hospital or other chains has changed the way the public views doctors and hospitals.  They are no longer neighbors and local heroes.  They are instead part of the corporatization of health care which treats patients as numbers and not people.  There is no longer a need for jurors to protect these people from their mistakes.

Of course, because the pendulum may just be beginning to swing in the other direction, the sky is falling for those who have so long benefitted from favorable jury decisions.  The doctors’ groups, the hospital associations and the malpractice insurance companies are all sounding the alarm and beginning to demand that states and the federal government do something to prevent these large verdicts that are going to harm all Americans.  Please, give me a break.  None of these groups gave a fig for the victims of obvious malpractice who were sent home over the years with nothing.  None of them were at all disturbed that the system was unbalanced when the imbalance favored them.  Since their concerns all involve money and not justice, I am not surprised at their alarm.  You should not be either.




The post There May Be Something Going On Down At The Courthouse first appeared on Sandweg & Ager PC.