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OCR for page 161
The Shadow of the Thaw:
Jury Decisions in Obstetrics and
Gynecology Cases*
STEPHEN DANIELS, PH.D., AND LOR! ANDREWS, J.D.
in his address to the 52nd annual
meeting of the Central Association of Obstetricians and Gynecologists
in 1984, Kenneth ~ Vander Kolk took as his theme the title of the Peggy
Lee song, "Is That All There Is?" He told his colleagues that "we practice
in a cage of sorts, the bars of which are made from an alloy of legal
scrutiny, legal harassment, legal endeavors, some legal expertise, and a
good portion of legal omnipotence" Physicians, he claimed, "are an
.
easy prey for the hustling attorney who initiates a lawsuit "2 Using 1954
as a point of comparison, Vander Kolk bemoaned the loss of innocence of
an earlier time when an obstetrician-gynecologist's cost of business
(including liability insurance) was so much lower "There was prac-
tically no malpractice There was no Medicaid, no Medicare, no health
maintenance organizations, no preferred provider organizations, no di-
agnosis-related groups, and most patients paid in cash These were the
good old days, but were they really any better?"3
At least in terms of medical malpractice, Vander Kolk, like many of
his colleagues, thinks things are far worse today than in the good old
* The research reported in this chapter was supported in part by a grant from the
National Foundation, Law and Social Sciences Program, Grant no. SES87-09794. The
authors would like to thank Ami Jaeger, Ruth Sosniak, Leah Feldman, and Lorrie Wessel
for their help in the preparation of this paper, and Rebecca Wilkin for her expert supervi-
sion of the data collection.
161
OCR for page 162
162 MEDICAL PROFESSIONAL LIABILITY: VOLUME II
days. In his view, "no longer can anything less than a perfect result in
patient care be considered to be an act of God, as it was in 1954."4
Although it is unlikely that he would use the reference, Vander Kolk's
viewpoint with regard to malpractice and one with which many of his
colleagues might agree can be nicely summed up in the title of a more
recent song, one by the Grateful Dead: things are going to "Hell in a
Bucket."5
Vander Kolk's characterization of medical malpractice echoes that of
many other physicians, their professional organizations, and the com-
panies that sell liability insurance to them. As Harold Schulman de-
scribed it in his presidential address to the New York Obstetrical Soci-
ety, "Malpractice litigation has profoundly influenced our professional
lives. It has become the single most talked about topic among physi-
cians."6
In 1985 William Mixson, then president of the American College of
Obstetricians and Gynecologists, said that malpractice was the most
serious problem facing obstetricians and gynecologists.7 The same con-
clusion was reached by the American Medical Association's Obstetrics-
Gynecology Council on Long-Range Planning and Development: "This
crisis is perhaps the most potent environmental factor currently affect-
ing obstetricians and gynecologists."8
Although many medical commentators concede that malpractice does
occur, the majority attack the tort system as a means of handling the
problem. Often, there are the expected derogatory claims about lawyers.
As Vander Kolk puts it, "will the unlimited classes of graduating law-
yers increase the number involved in unbridled, insensitive, inconsider-
ate, and unethical litigation?"9 More typical are charges about what
actually happens when a malpractice matter enters the courts. In par-
ticular it is argued that juries are not deciding the cases rationally.~°
According to Otis Bowen, former secretary of the Department of Health
and Human Services, "It has become more a lottery than a rational
system for compensation to the injured."~i The damages awarded are
criticized as being overly generous.
In addition, some commentators suggest that the errors providing the
basis for malpractice suits cannot easily be avoided. For example, Amer-
ican Medical Association (AMA) counsel Kirk Johnson points out that
medicine "requires decisions that are often as much matters of judgment
as of science."~3 Other commentators suggest that sophisticated new
technologies are the basis for suits. AMA executive vice-president
James Sammons, for example, suggested that errors may be due to
"highly advanced but imperfect technology."~4 The implication is that
juries may be unfairly holding physicians liable for maloccurrences that
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JURY DECISIONS IN OB/G~ CASES 163
are not easily preventable. Along those lines, Bowen pointed out that
physicians fee] that they are "unfairly at risk of being sued."~5
AMA counsel Johnson has said that it is "the unpredictability of the
system the vagaries of juries and the uncertainty about what is 'fault'
and when fault 'causes' harm to an already ill or injured patient—that
makes it hard for physicians to know what is 'legal' negligence and
substantially undercuts the system's deterrent effect." In his view,
"there are wide, irrational variations in both findings of liability and the
amount of damages for similar cases."~7
Despite the fact that jury verdicts in medical malpractice cases are
roundly criticized, there have been surprisingly few studies of what
actually happens in malpractice cases that go to court and virtually no
studies of cases involving obstetricians and gynecologists. Previous
studies have addressed malpractice jury verdicts only peripheral.
There has been more direct analysis of malpractice insurance claims,
most prominently Patricia Danzon's researchi9 and the recent U.S.
General Accounting Office studies.20 Based on the findings ofthe studies
to date, however, the connection between the problems faced by physi-
cians and what happens to malpractice disputes in the legal system
remains an open question.
In this chapter we report on a study that focused exclusively on
medical malpractice jury awards; our discussion here emphasizes ob-
stetrics and gynecology cases. The study was based on an analysis of
data from all medical malpractice jury verdicts in 46 counties in 11
states from 1981 to 1985. Although only a small percentage of claims
against physicians proceeds all the way to a jury decision, the actions of
juries influence the amount of compensation insurance companies will
pay on similar claims settled out of court. In addition, assumptions
about jury verdicts have been used to justify many recent tort reform
proposals.
We examine the quantity and nature of malpractice jury verdicts
against a backdrop of the potential claims patients have against physi-
cians. In doing this we will use two metaphors: a pyramid and a shadow.
The pyramid is used to place malpractice jury verdicts in the broader
context of disputes between physicians and patients by illustrating how
few medical errors that cause patient injury actually result in a jury
trial. Jury verdicts are at the pinnacle of the pyramid.
The shadow shows the broader importance of jury verdicts: despite
their small numbers, they cast a large shadow down the sides of the
pyramid. Estimates suggest that about 90 percent of all civil disputes
are settled without a trial, through a process of negotiation. Because of
the potential for resorting to legal action, however, negotiation is based
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164 MEDICAL PROFESSIONAL LIABILITY: VOLUME II
on the likely decision ofthe courts. Thus, negotiation takes place in the
words of a number of commentators—in the "shadow of the law." It is
the familiar image of a small object casting a disproportionately large
shadow.
We describe the shadow cast by obstetrics and gynecology cases by
focusing on a series of questions about what actually happens when
these cases go to ajury: What types of obstetrics and gynecology cases go
to a jury? How severe are the alleged injuries? What is the nature of
those injuries? What is the alleged cause ofthe injury? Who wins? When
plaintiffs win, how much do they win?
The accepted wisdom blames the legal system for the problems faced
by doctors. Physicians and commentators have argued that there are too
many lawsuits, too many jury awards for plaintiffs, and too many large
awards made in an unpredictable fashion. In contrast, we find that few of
these cases go before a jury, that plaintiffs do not usually win, and that
there are identifiable patterns in what juries decide in the cases that
come before them.
JURY VERDICTS AND THE DISPUTE RESOLUTION PYRAMID
A useful way to visualize the generation and resolution of disputes
between patients and physicians is to view the process as a pyramid. At
the base of the pyramid is the universe of medical events that have the
potential for generating disputes between patients and their physicians.
These are the medical errors resulting in injury that could provide the
basis for a claim by the patient against the physician. As with other
types of legal disputes,22 only a few of the many potential malpractice
disputes go all the way from the base to the top of the pyramid. At the
pinnacle are those few issues resolved byjury trial. The pyramid is oddly
shaped, with a broad base and relatively flat sides.
With respect to obstetrics and gynecology (and medical treatment
more generally), the precise dimensions of the pyramid are unknown.
Each time a health care professional comes into contact with a patient or
makes a decision regarding a patient's care, the chance of error arises.
There is probably no way of finding out the actual number of medical
errors committed in the course of treatment, and the paucity of reliable
data limits what can be said about the remainder of the pyramid.
Relying on the available data, we can provide a rough outline of this
pyramid's shape. We draw on studies in the medical literature and in the
insurance claims literature for estimates of the amount of medical error
causing patient injury and the resulting number of patient claims
against health care professionals. These estimates are supplemented by
estimates of errors and claims we have made using figures on hospital
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emRY DECISIONS IN OB/G~ CASES 165
admissions available from federal sources and sources in Texas (one of
the states in our study of jury verdicts). To provide some idea of how
many medical errors eventually lead to a court filing and then to an
actual trial, we rely on figures from New York (another state in our
study).
It appears that the absolute amount of error is likely to be substantial.
For instance, an influential study of the quality of medical care by Brook
and Stevenson found that only 27 percent of the emergency room pa-
tients in a major city hospital received effective care; 60 percent received
ineffective care, and 13 percent received neither elective nor ineffective
care.23 Brook and colleagues repeated the study at the Johns Hopkins
Hospital, focusing on patients complaining of gastrointestinal symp-
toms. They found that only 25 percent were given acceptable care.24
Consistent with such findings, Patricia Danzon's study of malpractice
insurance cIaims25 suggests that, on average, 1 in 20 hospital patients
incurs an injury as a result of medical error. Danzon teased her estimates
on an earlier California Medical Association (CMA) and California
Hospital Association (CHA) study;26 these estimates, she says, probably
understate the true rate.27 Using her formula and readily available
statistics, we can calculate a rough, conservative estimate of the uni-
verse of medical error resulting in patient injury. The National Center
for Health Statistics reports that 34.3 million patients (excluding new-
born infants) were discharged from short-stay, nonfederal hospitals in
1986.28 Using Danzon's 1 in 20 formula, the estimate of the universe of
medical error resulting in patient injury in the United States in 1986
was at least 1,715,000.
We can provide some detail on this aggregate estimate of medical
error by moving to the state level. Looking at Texas, we find that, in
1983, 2.5 million people were admitted to short-term general hospi-
tals.29 Using Danzon's 1 in 20 estimate of errors resulting in injuries for
hospital admissions, the universe of medical error in Texas for 1983
should have been in the neighborhood of 125,000. The universe of error
resulting in injury in the obstetrics and gynecology area will also be
sizable. For instance, we can calculate a rough estimate ofthe amount of
error in Texas with respect to labor and delivery by using Danzon's 1 in
20 estimate and the number of live births. In 1983 in Texas there were
295,000 live births,30 potentially representing an estimated 14,750 er-
rors resulting in injury.
There have been few attempts to discern why and how particular
medical errors are transformed into claims by patients against physi-
cians. What we do know suggests that most errors resulting in patient
injury do not lead to malpractice claims. For instance, the CMA and
CHA asked panels of medical and legal experts to examine 20,864
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166 MEDICAL PROFESSIONAL LIABILITY: VOLUME II
inpatient charts from 23 hospitals in California to identify potentially
compensable injuries.3t They found some evidence of fault in 17 percent
of the charts.32 They also found that only about 10 percent of those
patients actually filed a claim. A similar finding emerges from Danzon's
nationwide analysis of the frequency and severity of malpractice insur-
ance claims against doctors and hospitals.33 She found that few in-
stances of injury caused by medical error led to an insurance claim. She
reports that "at most 1 in 10 negligent injuries resulted in a claim, and of
these 40 percent received payment. In other words, at most 1 in 25
negligent injuries [sic] result in compensation through the malpractice
system."34
If we return to the data for Texas, we find even lower claims rates.
Using Danzon's formula of 1 in 10 injured patients making claims
against health care professionals, we would expect a total of about
12,600 malpractice claims for 1983 (corresponding to the estimated
126,000 errors resulting in patient injuries) and about 1,470 claims
dealing with labor and delivery (corresponding to the estimate of 14,750
errors resulting in patient injuries). The actual claims rates were much
lower. A Texas State Board of Medical Examiners report shows that
1,701 malpractice claims were made in 1983, of which only 219 were for
all obstetrics and gynecology matters.35 An earlier report shows that
between 1978 and 1984 there were only 1,178 obstetrics and gynecology
claims filed in Texas.36
Like the California figures, these low rates for Texas strongly suggest
that most patients who are injured by medical error will not pursue a
claim. Only one study to date has investigated the dynamics of dispute
transformation at this level. May and DeMarco surveyed patients in two
southern Wisconsin communities who were dissatisfied with the medi-
cal care they received. They found that the most common responses to
patient dissatisfaction were to "lump it" (do nothing) or simply to change
doctors. Only 25 percent of the patients contacted the offending physi-
cian directly, and only 11 percent contacted a lawyer.37
Patients who do pursue claims against physicians do not always
collect from the insurers. The great majority of claims, whether mal-
practice claims generally or obstetrics and gynecology claims specifi-
cally, are settled out of court, with or without payment—at a rate of
about 90 percent. Furthermore, according to Danzon, only about 50
percent of these are likely to be settled with a payment. Similarly, a
national study by the National Association of Insurance Commissioners
found that only 46 percent of malpractice insurance claims were settled
with a payment.38 In Texas only 21 percent of the obstetrics and gynecol-
ogy claims were settled with a payment; for all malpractice claims, the
figure was 20.3 percent.39 Using these scattered examples, we begin to
see the dispute resolution pyramid taking shape.
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JURY DECISIONS IN OB/G~ CASES 167
The sides of the pyramid grow no steeper when we look at court filings
for malpractice suits. Unfortunately, little is known about the actual
number of obstetrics and gynecology court filings for malpractice, so we
are left to draw a rough estimate of the situation. Only a few state court
systems keep detailed enough statistics to tell the number of medical
malpractice filings generally, and none breaks the figures down further.
New York is one state that reports overall medical malpractice court
filings. Looking at three New York counties in our study, for instance,
we find that in 1984 there were 476 medical malpractice cases filed in
Kings County, 490 filed in New York County, and 35 filed in upstate
Monroe County, which includes Rochester (data provided by State of
New York, Office of Court Administration, 19881.
Surely, there were more medical errors and more malpractice claims
than court filings in these three counties. Using Danzon's 1 in 20
estimate for errors per hospital admission causing patient injury and
1984 hospital admission data from the American Hospital Association's
annual survey40 along with these court filing data, we calculate the
following rough estimates of medical errors resulting in injuries for
these counties in 1984: Kings, 12,353 (247,055 admissions); Monroe,
4,104 (82,085 admissions); and New York, 23,723 (474,468 admissions).
In terms of the ratio of estimated error to actual court filings for these
counties in 1984, we find the following: Kings, 1 malpractice filing per
26 hospital admissions; New York, 1 per 48 admissions; and Monroe, 1
per 117 admissions. These figures illustrate that there are far fewer
malpractice court filings than errors resulting in injury.
The New York State filing statistics for these counties provide another
piece of important information: how the filed malpractice cases were
disposed of by the trial courts. Few of the cases—generally speaking,
fewer than 18 percent—actually went to a jury trial. At least 70 percent
were settled or stricken from the docket, and the remainder were han-
dled in a variety of other ways. There is no reason to assume that the
picture is significantly different for the subset of malpractice cases that
involves obstetrics and gynecology.
Only a small proportion of the substantial number of medical errors
resulting in patient injuries are transformed into claims, and no more
than one-half of those that are transformed are settled with a payment.
The great bulk of claims are settled out of court, and most that go as far
as a court filing never go to trial.
JURY VERDICTS AND THE SHADOW THEY CAST
The importance of jury verdicts lies not in their numbers, but in their
symbolic value as "transmitters of signals rather than as deciders of
cases."4i They play a crucial role in setting the "going rates" for different
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168 MEDiC~ P~FESSiONAL If: VOICE ~
TABLE 1 Selected Sites and Total Number of Civil Jury Verdicts
No. of
County Court Years Verdicts
Maricopa, Ariz. Superior 1981-1985 1,765
Alameda, Calif. Superior 1981-1985 357
Fresno, Calif. Superior 1981-1985 157
Los Angeles, Superior 1981-1985 2,613
Calif.
Sacramento, Superior 1981-1985 509
Calif.
San Diego, Calif. Superior 1981-1985 410
San Francisco, Superior 1981-1985 668
Calif.
Arapahoe, Colo. District 1984-1985 51
Boulder, Colo. District 1984-1985 53
Denver, Colo. District 1984-1985 294
Jefferson, Colo. District 1984-1985 94
Cobb, Ga. Superior 1982-1984 90
DeKalb, Ga. Superior 1982-1984 239
Milton, Ga. Superior 1982-1984 539
Cook, Ill. Circuit 1981-1985 4,181
DuPage, Ill. Circuit 1981-1985 436
Kane, Ill. Circuit 1981-1985 171
Lake, Ill. Circuit 1981-1985 295
McHenry, Ill. Circuit 1981-1985 61
Will, Ill. Circuit 1981-1985 290
Winnebago, Ill. Circuit 1981-1985 148
Johnson, Kan. District 1981-1985 310
Wyandotte, Kan. District 1981-1985 286
Clay, Mo. Circuit 1981-1985 104
Jackson, Mo. Circuit 1981-1985 894
Platte, Mo. Circuit 1981-1985 47
Bronx, N.Y. Supreme 1981-1985 367
Erie, N.Y. Supreme 1983-1985 181
Kings, N.Y. Supreme 1981-1985 762
Monroe, N.Y. Supreme 1983-1985 127
Nassau, N.Y. Supreme 1981-1985 636
New York, N.Y. Supreme 1981-1985 1,101
Onondaga, N.Y. Supreme 1983-1985 86
Queens, N.Y. Supreme 1981-1985 404
Richmond, N.Y. Supreme 1981-1985 71
Suffolk, N.Y. Supreme 1981-1985 291
Westchester, N.Y. Supreme 1981-1985 259
Multnomah, Ore. Circuit 1984-1985 285
Dallas, Tex. District 1981-1985 2,106
Harris, Tex. District 1981-1985 2,012
King, Wash. Superior 1983-1985 416
Pierce, Wash. Superior 1983-1985 131
Skagit, Wash. Superior 1983-1985 19
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JURY DECiSiONS iN OB/GYN CASES 169
TABLE 1 continued
No. of
County Court Years Verdicts
Snohomish, Superior 1983-1985 114
Wash.
Spokane, Wash. Superior 1983-1985 122
Yakima, Wash. Superior 1983-1985 73
Total 24,625
types of cases, and these going rates in turn are used in the process of
negotiation and settlement that disposes of the bulk of claims. Galanter
has said that "we might visualize the jury as a part of a system of
'bargaining in the shadow of the law.' The jury casts a shadow across the
wider arena of claims and settlements by communication of signals
about what future juries might do.,,42 The jury's principal contribution
"to dispute resolution is providing a background of norms and pro-
cedures against which negotiations . . . take place."43
We were interested in determining the shape of the shadow cast by
medical malpractice jury verdicts over other phases of the dispute proc-
ess involving medical error. We also wanted to know how this shadow
compared with the one cast by civil jury verdicts generally so that we
would have some larger context to use in describing malpractice jury
shadow. To do this, we first collected data on 24,625 civil verdicts from
state trial courts of general jurisdiction in 46 counties in 11 states for the
years 1981 to 1985. The sites included in our study, along with the raw
frequencies, are given in Table 1. The sites are not a representative
sample of all jurisdictions across the country; rather, they reflect a
combination of regional balance and available source materials.
The jury verdict data were collected from local jury reporters. These
reporters are subscription services used by local attorneys, judges, in-
surance companies, and so on. The reporters we used are nonselective in
their coverage of cases. They do not limit themselves to certain types of
cases (e.g., auto accidents) or to those considered important for some
reason (e.g., those with high awards). They get their information di-
rectly from court records and from the attorneys involved. The case
reports published by these services indicate the county in which the jury
verdict was rendered; when it was rendered; the names of the parties
and the attorneys; the type of case; a short description of the factual
situation; the jury's verdict and award, if one was given; apportionment
of liability, where appropriate; any special damages; compensatory or
general damages; and any punitive, exemplary, or multiplied dam-
ages.44
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170 MEDiC~ P~FESSiONAL I: VOICE ~
For each of the 46 counties in each year, data were collected on al!
published jury cases in which money damages were at issue. The data
generally cover the period 1981-1985, although fewer years are covered
for some sites because of problems in obtaining data (see Table 11. The
data presented here are for all years combined. Combining the data
allows us to give an overall picture of patterns in jury verdicts for the
first half of the 1980s while controlling for year-to-year fluctuations in
verdicts.45 Moreover, five years is too short a period to use in talking
about trends. The data do not include verdicts in federal trials, verdicts
in bench trials, settlements short of trial, or posttrial motions.46 All
dollar amounts are presented in 1985 dollars, andjury awards represent
gross awards rather than net awards (after reductions for comparative
negligence).
From the general jury verdict data set of 24,625 cases, we identified
1,885 (7.7 percent) that involved allegations of medical malpractice.
Among these malpractice cases, we identified 364 obstetrics and gyne-
cology cases (19.3 percent of the malpractice cases and 1.5 percent of all
the jury cases). We then collected additional data on the obstetrics and
gynecology cases (as defined by the nature oftreatment involved and not
just the physician's specialty). These data are the subject of our analysis.
We first take a broad view of malpractice verdicts. This task involves
describing how the 1,885 malpractice verdicts and the 364 obstetrics and
gynecology verdicts were distributed among the 46 counties and how
often plaintiffs won. We show how the obstetrics and gynecology verdicts
were distributed by type of case (pregnancy, tubal ligation, and so on)
and look at those verdicts in terms of the severity of injury alleged, the
cause of injury, and how much money plaintiffs were awarded when they
did win.
Second, we provide more detail, looking at plaintiff success rates,
severity of injury, cause of injury, and size of awards for the different
types of obstetrics and gynecology cases. Throughout our discussion, we
refer to our background data on total civil jury verdicts to provide a
context for the information on malpractice verdicts.
JURY VERDICTS IN OBSTETRICS AND GYNECOLOGY
General Contours of the Shadow
Distribution of Verdicts Among Sites
Table 2 presents data on the number of medical malpractice cases in
each of the 46 counties, the percentage of all money damage cases
accounted for by malpractice, the number of obstetrics and gynecology
cases, and the percentage of all malpractice cases involving obstetrics
OCR for page 171
JURY DECISIONS iN OB/GYN CASES 171
TABLE 2 Number and Percentage of Medical Malpractice and
Obstetrics-Gynecology (Ob-Gyn) Verdicts in Selected Counties,
1981-1985
Medical Medical Ob-Gyn as
Malpractice Malpractice as Ob-Gyn % of All
(N) % of All Verdicts (N) Medical Malpractice
Maricopa, Ariz. 50 2.8 10 20.0
Alameda, Calif. 32 9.0 5 15.6
Fresno, Calif. 12 7.6 2 16.7
Los Angeles, 305 11.7 56 18.4
Calif.
Sacramento, 27 5.3 4 14.8
Calif.
San Diego, Calif. 39 9.5 5 12.8
San Francisco, 38 5.7 4 10.5
Calif.
Arapahoe, Colo. 3 5.9 1 33.3
Boulder, Colo. 4 7.5 1 25.0
Denver, Colo. 29 9.9 3 10.3
Jefferson, Colo. 10 10.6 1 10.0
Cobb, Ga. 8 8.9 1 12.5
DeKalb, Ga. 17 7.1 0
Fulton, Ga. 35 6.5 9 25.7
Cook, Ill. 134 3.2 26 19.4
DuPage, Ill. 28 6.4 5 17.9
Kane, Ill. 10 5.8 2 20.0
Lake, Ill. 19 6.4 4 21.1
McHenry, Ill. 8 13.1 2 25.0
Will, Ill. 22 7.6 3 13.6
Winnebago, Ill. 8 5.4 1 12.5
Johnson, Kan. 17 5.5 4 23.5
Wyandotte, Kan. 10 3.5 2 20.0
Clay, Mo. 4 3.8 0
Jackson, Mo. 38 4.3 9 23.7
Platte, Mo. 1 2.1 0
Bronx,-N.Y. 43 11.7 10 23.3
Erie, N.Y. 17 9.4 6 35.3
Kings, N.Y. 150 19.7 26 17.3
Monroe, N.Y. 5 3.9 0
Nassau, N.Y. 121 19.0 33 27.3
New York, N.Y. 224 20.3 43 19.2
Onondaga, N.Y. 9 10.5 4 44.4
Queens, N.Y. 85 21.0 22 25.9
Richmond, N.Y. 10 14.1 5 50.0
Suffolk, N.Y. 36 12.4 11 30.6
Westchester, 46 17.8 10 21.7
N.Y.
Multnomah, Ore. 18 6.3 7 38.9
Dallas, Tex. 42 2.0 4 9.5
Harris, Tex. 117 5.8 11 9.4
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JURY DECISIONS IN OB/G~ CASES 183
(incomplete diagnosis or treatment), and plaintiffs were most successful
in these cases. The severity of injury grouping was fairly evenly split
between the combined categories of no physical injury and temporary
injury, on the one hand, and permanent injury or death, on the other.
Plaintiffs were more successful when the injury was more severe. The
success rate for no physical injury and temporary injury combined was
only 11.8 percent, while that for permanent injury or death was 26.3
percent.
Labor and Delivery
Labor and delivery cases made up the largest proportion (33.8 per-
cent) of obstetrics and gynecology verdicts and showed one of the highest
success rates and award structures. The plaintiff success rate for labor
and delivery cases was 44.7 percent, compared with 36.8 percent for all
obstetrics and gynecology cases. The median award was $1,665,000, far
above the median of $390,000 for all obstetrics and gynecology cases and
the median for any other type of obstetrics and gynecology case. In fact
the labor and delivery median is higher than the 75th percentile for any
other type of obstetrics and gynecology case and equal to the 75th
percentile overall.
Nearly two-thirds of labor and delivery injuries were caused by prob-
lems in medical management (e.g., failure to adequately supervise or
properly monitor). The success rate for these cases (47.5 percent) was
higher than the rates for injuries with other cause~for example, the
35.7 percent for injuries resulting from a specific procedure (e.g., the
improper use of forceps), the other major category of labor and delivery
cases. One-half of the labor and delivery cases involved class 3 injuries
(e.g., lack of monitoring); the plaintiff success rate in these instances
was quite high, at 54.8 percent. The success rates for classes 1 and 2, in
contrast, were 37.8 percent and 25.0 percent, respectively. Labor and
delivery cases were more likely than overall obstetrics and gynecology
cases to involve severe injuries: 78.9 percent of the cases involved per-
manent injury or death, and plaintiffs were successful in 46.4 percent of
these cases. In comparison, 59.6 percent of total obstetrics and gynecol-
ogy cases involved permanent injury or death, with a plaintiff success
rate of 38.2 percent.
Abortion
Although abortion cases had the highest plaintiff success rate 59.3
percen~they had only a moderate award structure. The median award
was $153,400, well below the overall median of $390,000; abortion cases
OCR for page 184
184
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OCR for page 186
186 MEDICS P~FESSiON~ I: VOICE ~
also had the next-to-Iowest 75th percentile, $390,000, far below the
overall 75th percentile of $1,665,000. Nearly all of the abortion cases
involved an injury tied to a specific procedure or treatment (negli-
gence in the performance of the abortion itself), and plaintiffs were
quite successful in specific procedure cases, with a success rate of 60.9
percent.
The greatest proportion of abortion cases (48.1 percent) involved class
1 injuries (a new abnormal condition such as a perforated uterus), and
these cases had a success rate of 53.8 percent. The injuries involved in
abortion cases tended to be less severe than those in obstetrics and
gynecology cases overall. Of all obstetrics and gynecology cases, 40.4
percent involved no physical injury or temporary injury, with plaintiffs
winning in 34.7 percent of of the cases. Of the abortion cases, in contrast,
77.8 percent involved no physical injury or temporary injury, with a
plaintiffsuccess rate of 61.9 percent in these combined categories. Plain-
tiffs were successful in just half of the six abortion cases in which the
injury was a permanent one or death.
Hysterectomy
Hysterectomy cases had the second lowest plaintiff success rate, at
23.8 percent, and the second lowest award structure, with a median of
$118,000. The largest proportion of the hysterectomy injuries (57.1
percent) was caused by a specific procedure (typically the surgical pro-
cedure itself), but plaintiffs were rarely successful in procedure cases—
the success rate was only 20.8 percent. Most of the hysterectomy cases
(76.2 percent) involved class 1 injuries (the adverse effects of medical
intervention), but plaintiffs were successful in only 25.0 percent ofthese
cases. The severity of injury for hysterectomy cases tended to be Tower
than that for obstetrics and gynecology cases overall: 52.4 percent of the
hysterectomy cases involved temporary injuries (none involved no phys-
ical injury), compared with 40.4 percent overall in the two categories
combined. Of those hysterectomy cases involving temporary injuries,
plaintiffs were successful in only 27.3 percent. Plaintiffs were even less
successful (20.0 percent) in cases in which the injury was permanent or
in which death occurred.
Tubal Ligation
Tubal ligation cases had one of the lower plaintiff success rates, at 25
percent, and the lowest award structure. The 25th percentile was only
$7,770, and the median was by far the lowest—$37,800, about one-tenth
the overall median. Most of the tubal ligation cases (78.6 percent)
OCR for page 187
JURY DECISIONS iN OB/G~ CASES 187
.
involved injuries caused by a specific procedure (typically the surgical
procedure itself), but plaintiffs were not often successful (22.7 percent)
in these cases. One-half of the tubal ligation cases involved class 1
injuries (the adverse effects of medical intervention), and plaintiffs were
rarely successful in these cases (14.3 percent). Tubal ligation cases
involved the least severe injuries of all types of obstetrics and gynecology
cases—78.6 percent involved no physical injury or temporary injury. Of
these cases, plaintiffs were successful in 27.3 percent. Plaintiffs were
even less successful (16.7 percent) in the tubal ligation cases involving
permanent injury or death.
Cancer
Cancer cases had one of the highest plaintiff success rates (40.6
percent) and the second highest award structure, with a median of
$59O,000. The 75th percentile for cancer was $1,107,000, and the 25th
percentile was $253,782. This 25th percentile for cancer cases was
higher than any other and higher than the medians for all types of cases
except labor and delivery.
Nearly all of the cancer cases (84.4 percent) had as their cause a
diagnosis-related injury (e.g., failure to diagnose cervical cancer), and
plaintiffs were successful in 44.4 percent of the diagnosis-related cases.
An even larger proportion of cancer cases (90.6 percent) involved class 2
injuries (incomplete treatment or diagnosis); plaintiffs were successful
in 37.9 percent of these. The cancer cases had the highest proportion of
severe injuries; 93.7 percent involved permanent injury or death, and
plaintiffs were successful in 43.3 percent of these cases. In contrast, no
plaintiff was successful in the less severe cases.
Interpreting the Shape of the Shadow
Looking at the different types of obstetrics and gynecology cases in
detail reveals important patterns in the shape of the shadow cast from
the top of the dispute resolution pyramid. These patterns suggest that
juries may not be as capricious in their handling of malpractice cases as
some commentators have claimed. In fact if jury decisions were capri-
cious, we should find little or no shape to the shadow and certainly no
identifiable patterns in the details. We might expect, on the one hand,
similarity across types of cases thatjuries make no distinctions; hence,
all types of obstetrics and gynecology cases are handled the same. On the
other hand, we might expect randomness when the different types of
cases are compared—that is, no identifiable patterns. It is randomness
that the rhetoric of malpractice says we should find.
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188 MEDiC~ P~FESSiON~ If: VOILE ~
The discussion of the data in Table 5 for the different types of obstet-
rics and gynecology cases indicates that neither randomness nor a
general similarity was the rule. There were identifiable and important
patterns in Table 5, and they became evident when comparisons were
made among the different types of cases. Perhaps the most obvious place
to start limping the details of the shadow's shape is with labor and
delivery and cancer, the two groups with the highest award structures.
There were important similarities between the two types of cases.
Along with high award structures, the two had relatively high plaintiff
success rates (labor and delivery at 44.7 percent and cancer at 40.6
percent). For each, the greatest proportion of cases involved the more
severe injuries (both had a percentage of cases involving permanent
injury or death in excess of 78 percent). No other type of obstetrics and
gynecology case had a percentage involving permanent injury or death
that was as high as 54 percent. It would seem, then, that juries were
more likely to decide in favor of plaintiffs and award more money in
situations in which the injuries were more severe. The low success rates
and low award structures for more severe injuries in hysterectomy and
tubal ligation cases suggest thatjuries are not simply making emotional
decisions based solely on severity of injury.
There were differences between labor and delivery and cancer cases in
cause and class of injury as well, as one would expect. The predominant
cause of injury for labor and delivery was medical mismanagement, and
plaintiffs had a relatively high success rate for these cases (47.5 per-
cent). Of the 55 successful cases, 69.1 percent involved medical manage-
meet. The message from jury verdicts for physicians seems clear:
greater care and diligence are needed in handling labor and delivery.
For cancer cases, the predominant cause of injury involved diagnosis,
and plaintiffs were quite successful (44.4 percent). Of the 13 successful
cancer cases, 12 were diagnosis cases. Again, the message from jury
verdicts seems clear. The predominant class of injury for labor and
delivery was class 3 incomplete prevention or protection—and these
cases made up 61.8 percent of the successful labor and delivery cases.
For cancer cases, class 2 was predominant—incomplete treatment or
diagnosis; these cases made up 84.6 percent of the successful cancer
cases.
At the other extreme were the hysterectomy and tubal ligation cases,
which had the lowest award structures and Tow plaintiff success rates,
even when the injuries were more severe. For each type of case, the
predominant cause of injury was a specific procedure, and plaintiffs
were rarely successful in these cases (the hysterectomy success rate was
20.8 percent, the tubal ligation rate, 22.7 percent). For each type of case,
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JURY DECISIONS iN OB/G~ C - ES 189
class 1 injuries (a new abnormal condition as a result of medical inter-
vention) predominated (hysterectomy at 76.2 percent and tubal ligation
at 50 percent), and plaintiff success rates were low (25 percent and 14.3
percent, respectively). Perhaps most important, the injuries involved
were not as severe as in labor and delivery or cancer. In both hysterec-
tomy and tubal ligation cases, more than half the injuries were tempor-
ary or not physical. In both labor and delivery and cancer the percentage
of these types of injuries was below 25 percent.
Juries, it seems, have not been awarding large amounts of money to
plaintiffs in cases involving specific procedures and less severe injuries,
nor have they been deciding cases overwhelmingly in favor of plaintiffs,
even when injuries are more severe. The exception with regard to suc-
cess rates was the abortion cases, which had a very high plaintiffsuccess
rate (59.3 percent), along with a high percentage of cases with no
physical injury or temporary injury (77.8 percent). This pattern may
have occurred because abortion is seen as a routine health care matter
rather than a complicated procedure. Perhaps the reason for the differ-
ence in success rates for abortion cases as compared with hysterectomy
cases and tubal ligation cases was in the jury's response to medical error
in a situation in which the procedure involved is well known, relatively
simple, and routinely used. Nonetheless, the award structure for abor-
tion cases was modest.
These findings suggest that it is not the new technologies on the
frontiers of medicine that were behind high awards or high plaintiff
success rates but problems involving older, established technologies.
Rather than reaction to the risks of the new, we may be seeing instead a
lack of tolerance for mistakes in the use of the old and well established,
especially in cases in which the injuries are more severe. This pattern
becomes evident when we look more closely at the labor and delivery
cases and at the subset of cases within this category that had the highest
plaintiff success rate and the highest award structure. These were the
cases involving the use of oxytocin, a drug used to induce labor. If
improperly used, oxytocin can have serious, lifelong effects on the baby,
such as paralysis, brain damage, and mental retardation.
Of the 123 labor and delivery cases, 28 included injuries caused by
medications. Twenty-three of these involved the use of oxytocin; one
involved the use of Demerol; one involved the use of "pain killers"
otherwise unidentified; and the remaining three involved general alle-
gations of overmedication.52 To place the 23 oxytocin cases in proper
perspective, some background on oxytocin is needed. The use of oxytocin
to induce labor began in Germany in 1910 with the use of a pituitary
extract. Parke-Davis began marketing oxytocin in this country in 1928
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190 MEDICO Professions I: VOICE ~
under the brand name Pitocin; Pitocin has traditionally been the brand
of choice. In the 1950s a synthetic version was developed and was
marketed by Parke-Davis under the same name.
Contraindications for the use of oxytocin began appearing regularly
in the Phys~cian's Desk Reference (PDR) in 196253 and by 1963 in the
frequent Parke-Davis advertisements for Pitocin that appeared in the
Amerzean Journal of Obstetrics and Gynecology.54 The list of precautions
grew throughout the 1960s and 1970s; by the 1970s they had begun
appearing prominently in medical texts.55 In 1978 the Food and Drug
Administration (FDA) required that a warning notice be placed in or on
the box in which the medication was packaged.56 In January 1979 the
FDA required that Parke-Davis submit a revised new drug application
for Pitocin. The application was approved in November 1980. During the
1980s successive volumes of the PDR showed a lengthening and detailed
list of precautions for the use of oxytocin. The dangers of oxytocin, then,
were widely disseminated during the 1960s and 1970s, although they
had been known for some time and were well documented in the medical
literature by the early 1920s.57
Against this background we examined the 23 oxytocin cases in detail,
comparing the allegations made about misuse ofthe drug with the list of
precautions found in the PDR, in the Parke-Davis advertisements, and
in other sources for the year in which the injury occurred. Sixteen of the
23 oxytocin cases alleged that the drug was used in a situation in which
contemporary medical sources (PDR, manufacturer advertisements,
and medical texts), as well as other sources,58 said that it was contraindi-
cated. Of these 16 eases, 6 involved inadequate supervision while using
oxytocin, 4 involved fetal distress, 3 involved breech presentations, 2
involved pelvic disproportion, and 1 involved the taking of an inade-
quate patient history and the failure to do a blood test, either of which
would have shown that the mother was diabetic.
Plaintiffs were successful in 14 of these 16 cases (plaintiffs were not
successful in one of the breech cases and in one of the supervision cases).
This compares with a success rate of 44.7 percent for labor and delivery
cases generally and a rate of 36.8 percent for all obstetrics and gynecol-
ogy cases. Of the 7 other oxytocin cases, those in which a contraindica-
tion was not evident in the case summaries, plaintiffs were successful in
only 14.7 percent, lending credence to the juries' ability to distinguish a
clear violation of the standard of care. The award structure for the 14
successful cases was very high. It ranged from $147,500 (in 1985 dollars)
to $18,381,600. The median award was $3,660,000, compared with a
median of $1,665,000 for all labor and delivery cases and a median of
$390,000 for all obstetrics and gynecology cases.
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JURY DECISIONS IN OB/G~ CASES 191
Ofthe 16 cases involving contraindications, all resulted in permanent
injury or death. When we examined them in more detail, using the full
nine-point severity scale (see Table 4), we found that two cases involved
a significant permanent injury and two involved death. The two cases in
which plaintiffs were not successful involved grave permanent injury. In
comparison, 78.9 percent of labor and delivery cases involved perma-
nent injury or death, and 59.6 percent of all obstetrics and gynecology
cases involved permanent injury or death. In the oxytocin cases then,
juries appear to have responded in no uncertain terms to the misuse of
an old, established technology whose limitations and contraindications
were well known and widely disseminated.
CONCLUSIONS
The rhetoric of malpractice characterizes jury verdicts as irrational,
unpredictable, uncertain, and decidedly pro-plaintiff in terms of who
wins and the amounts of money awarded. As a consequence, radical
changes in the civil justice system have been proposed and vigorously
supported.
Our findings describe a very different shadow being cast by obstetrics
and gynecology jury verdicts. Only a very small proportion of injury-
causing medical errors ever leads to a claim against the physician, and
fewer result in ajury trial. Ofthe small portion of obstetrics and gynecol-
ogy errors that result in a jury trial, physicians win most of the time.
When physicians lose, it is likely to be in situations that do not involve
specific procedures but that do involve severe injuries and in situations
involving older, well-established technologies. Awards, when plaintiffs
are successful, may be high, but they are not excessive, given the
seriousness of the injuries. The fact that it is older, established technolo-
gies rather than newer, frontier technologies that are generally involved
suggests that targeted attempts at quality assurance may be more
appropriate than radical tort reform in reducing obstetrics and gynecol-
ogy malpractice litigation.
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2. Ibid., p. 142.
3. Ibid., p. 140.
4. Ibid., p. 142.
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192 MEDICO P~FESSiON~ I: VOILE ~
8. American Medical Association, Council on Long-Range Planning and Development
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12. See, for example, K. Johnson. 1987; see note 10.
13. Ibid., p. 827.
14. Cohn, V. 1987. The price of malpractice: How the crisis harms the relationship
between doctors and patients. Washington Post. March 12. Health Section, p. 10.
15. Bowen. 1987, p. 816; see note 11.
16. K. Johnson. 1987, p. 827; see note 10.
17. Ibid. See also American Medical Association Specialty Society Medical Liability
Project. 1988. A Proposed Alternative to the Civil Justice System for Resolving
Medical Liability Disputes: A Fault-Based Administrative System. Chicago, pp.7-8,
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18. Burrow, D., and J. E. Collins. 1987. Insurance "crisis"—Texas style: The case for
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analysis of the medical malpractice system. Behav. Sci. 1:39-55; Gifford, D., and D.
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19. Danzon, P. M. 1985. Medical Malpractice: Theory, Evidence, and Public Policy. Cam-
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20. General Accounting Office (GAO), U.S. Congress. 1986. Medical Malpractice: Case
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also published in 1986; and see U.S. Department of Health and Human Services.
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21. See, for example, Galanter, M. 1986. Jury shadows: Reflections on the civil jury and
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22. Galanter, M.1983. Reading the landscape of disputes: What we know and don't know
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23. Brook, R., and R. Stevenson.1970. Effectiveness of patient care in an emergency room.
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25. Danzon. 1985; see note 19.
26. California Medical Association and California Hospital Association. 1977. Medical
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27. Danzon. 1985, p. 20; see note 19.
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30. Ibid.
31. California Medical Association and California Hospital Association.1977; see note 26.
OCR for page 193
JURY DECISIONS iN OB/G~ CASES 193
32. Danzon. 1985, p. 20; see note 19.
33. Ibid.
34. Ibid., p. 24.
35. Texas State Board of Medical Examiners. 1988. Medical Malpractice Statistics Re-
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36. Texas State Board of Medical Examiners. 1987. Medical Malpractice Statistics Re-
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39. Texas State Board of Medical Examiners. 1988; see note 35.
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42. Ibid., p. 2.
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47. Daniels and Martin. 1986; see note 45.
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49. For example, California Medical Association and California Hospital Association.
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humans. J. Pharmacol. Exp. Ther. 80:256-263.
58. Ibid.
Representative terms from entire chapter:
success rates
