Jury Verdicts Research Articles

Systematic Review of Malpractice Litigation in the Diagnosis and Treatment of Acute Stroke

Background and Purpose- The emergency management of stroke is complex and highly time-sensitive. Recent landmark trials demonstrating the strong benefit of thrombectomy have led to rapid change in stroke management. This article reviews a large number of medical malpractice lawsuits related to the emergency management of stroke to characterize factors involved in these lawsuits. Methods- Three large legal databases were used to search for jury verdicts and settlements in cases related to the acute care of stroke patients in the United States. Search terms included "stroke" and "medical malpractice." Cases were screened to include only cases in which the allegation involved negligence in the acute care of a patient suffering a stroke. Results- We found 246 medical malpractice cases related to the acute management of ischemic stroke and 26 related to intracranial hemorrhage. Seventy-one cases specifically alleged a failure to treat with tPA (tissue-type plasminogen activator) and 7 cases alleged a failure to treat, or to timely treat, with thrombectomy. Overall there were 151 cases (56%) which ended with no payout, 74 cases (27%) were settled out of court, and 47 cases (17%) went to court and resulted in a verdict for the plaintiff. The average payout in settlements was $1 802 693, and the average payout in plaintiff verdicts was $9 705 099. Conclusions- Malpractice litigation is a risk in acute stroke care and can lead to significant financial consequences. The majority of malpractice lawsuits related to the emergency management of stroke allege a failure to diagnose and failure to treat. Allegations of a failure to treat acute ischemic stroke with tPA were frequently found and are common in lawsuits. Allegations of a failure to treat a large vessel occlusion with thrombectomy were less frequently found. Given recent changes in practice guidelines and the demonstrated strong treatment effect of thrombectomy, it is likely that such litigation will increase in the coming years.

Complications and Litigation Associated With Injectable Facial Fillers: A Cross-Sectional Study

Soft-tissue injectable fillers are a popular treatment option for patients seeking minimally invasive facial rejuvenation. The use of soft-tissue fillers has increased significantly in the past 10years. In 2017 alone, clinicians administered nearly 2.7 million soft-tissue fillers, up from 1.3 million in 2007. Although injectable fillers have a relatively high safety profile compared with more invasive rejuvenation procedures, serious adverse events, including intra-arterial injections, necrosis, and visual symptoms such as blindness, have been documented. Complications from injectable fillers have also been a source of litigation, which has been shown to be associated with a perceived lack of informed consent. We sought to document the reported complication rates associated with injectable facial fillers from a national database and to report on the available cases of malpractice litigation. The US Food and Drug Administration's Manufacturer and User Facility Device Experience database was used to collect the reported complications from 2013 to 2017 for the following injectable fillers: Artefill, Bellafill, Belotero, Juvederm, Radiesse, Restylane, Sculptra, and Kybella. Complications were organized by filler type, injection location, and complication type. The Thomson Reuters Westlaw Edge database was used to collect the reported jury verdicts and settlements from 2008 to 2017 for injectable facial fillers. A total of 2813 adverse events were analyzed. The most common locations for complications were the cheek (915 [32.5%]), lips (503 [17.9%]), and nasolabial fold (412 [14.6%]). The commonly reported adverse events were swelling (1,691 [60.1%]), nodule (948 [33.7%]), and pain (636 [22.6%]). Severe complications included intra-arterial injections resulting in necrosis and visual symptoms (eg, blurred vision and blindness). Forehead and dorsal nasal injections were significantly associated with intra-arterial complications resulting in necrosis and visual symptoms (P<.01). Injections with Radiesse were significantly associated with intra-arterial injections resulting in necrosis and visual symptoms (P<.01). A total of 11 malpractice cases were analyzed. The median award in the cases resolved by a verdict in favor of the plaintiff or settlement was $600,000. In 10 of the 11 cases, a lack of informed consent had been alleged. The complications associated with injectable facial fillers varied greatly, depending on factors involved with their application. The most common adverse effects were swelling, nodule formation, and pain. Serious complications stemming from intra-arterial injections included necrosis and visual disturbances, including blindness. These complications have been raised in legal cases, in which the lack of informed consent was frequently alleged. The present analysis has documented some of the potential risks involved with injectable facial fillers and demonstrated the need for a thorough informed consent process before their administration.

A Framework for Credibility in Empirical Legal Analysis

Quantitative empirical research is central to both legal scholarship and litigation, but there is little confidence in it. This is because researchers can manipulate data to arrive at any result they seek to find. The root of the problem is data fishing, the practice of using data to search for and selectively report results that are statistically significant or otherwise favorable to the researcher. For reasons explained in this article, data fishing invalidates statistical results by causing false positives and false impressions. It creates an environment in which, at best, readers are highly skeptical of statistical analysis and, at worst, they base important decisions, such as policy decisions and jury verdicts, on incorrect information. The practice is nevertheless prevalent in law—often committed by well-intentioned researchers who are unaware of its harms or unaware that their analysis constitutes data fishing. This article exposes the harm that data fishing in empirical legal research causes. It then develops a framework for eliminating data fishing and restoring confidence in empirical analysis in legal scholarship and litigation. This framework, which I call DASS (an acronym for Design, Analyze, Scrutinize, and Substantiate), builds on methods in statistics and is designed for researchers to use to safeguard against data fishing and for consumers of empirical research—including scholars, courts, policymakers, and members of the public—to use to evaluate the reliability of a researcher’s statistical claims. DASS is designed to be simple and flexible, tailored to suit empirical research in law, and a substantial advancement over current anti-data-fishing practices in the social sciences, which have generally been ineffective. It can be applied broadly as a framework for credibility in empirical legal research, as well as to address a range of classical challenges in litigation, such as the hired-gun and battle-of-the-experts problems in evidence law.

A Qualitative Analysis of Malpractice Litigation in Cardiology Using Case Summaries Through a National Legal Database Analysis.

IntroductionPhysicians are increasingly practicing defensive medicine as a response to society’s litigious climate. This study sought to characterize cardiology malpractice claims and elucidate the allegations underlying the use of defensive medicine.MethodsThe WestlawNext™ database was queried to obtain state and federal jury verdicts and settlements related to medical malpractice and cardiology that occurred in the United States between 2010 and 2015. Cardiology cases were identified using the search terms “medical malpractice” and “cardiology” and reviewed by two individuals utilizing available case documents. Duplicate and nonpertinent cases were excluded. Binary logistic regression models were created to predict the likelihood of defendant verdict, plaintiff verdict, and settlement based on the various reasons for litigation cited.ResultsInclusion criteria were met in 166 cases. The plaintiffs were predominantly male (94 cases; 56.6%), and the average patient age was 53.3±17.5 years. More than half of the cases involved a cardiologist as a defendant. The most common reasons for litigation were: failure to treat (129; 77.7%), failure to diagnose (115; 69.3%), failure to refer/order diagnostic tests (107; 64.5%), and patient death (118; 71.1%). Among cases tried for failure to diagnose, the most commonly missed diagnosis was myocardial infarction. Cases most commonly resulted in a defendant verdict (94; 56.6%). However, odds of a plaintiff verdict were significantly higher when failure to diagnose was alleged with an odds ratio (OR) of 7.60 (95% confidence interval 1.14 - 50.87, p = 0.0365).ConclusionsFailure to diagnose remains a commonly alleged base for litigation. In conclusion, our analysis suggests increased training for non-cardiologists in the recognition of the acute coronary syndrome and enhanced awareness of inherent biases among all physicians may facilitate reducing missed diagnoses.

Damned If She Does, Damned If She Doesn’t: De-Legitimization of Women’s Agency in Commonwealth v. Woodward

Mothers are never innocent. (1) When Deborah Eappen left for work on the morning of February 4, 1997, her eight-month-old child, Matthew, was alive and in the care of his au pair of three months, British nineteen-year-old Louise Woodward. (2) When she next saw Matthew, he was in the hospital, (3) the victim of severe head trauma. (4) Five days later he was dead. (5) The death of child is always disturbing event and manifest injustice. Even where an objective analysis would fail to find fault, the tragic nature of the occurrence will lead to search for blame. (6) This phenomenon is intensified in the courtroom, as the adversarial process demands the placement of blame. (7) Yet how blame is dispersed is often informed by far more than the evidence put before the jury. Although the parties before the court may not so acknowledge, deep-seated social understandings can also play role in the distribution of blame. (8) The trial that ensued from the death of Matthew Eappen was no exception. This Article will evaluate many of the social and legal factors that influence the distribution of blame when child dies. It proceeds on the assumption that the standards of criminal law are intended in part to align legal culpability with causation--that is, the defendant's proximal responsibility for the occurrence of the act. (9) Specifically, this Article explores the disparate social criticism and legal treatment of infanticidal mothers as compared with other caretakers who kill, and concludes that, in affording non-mothers excuses that are not permitted for mothers, both society and courts have disregarded traditional standards required for murder and manslaughter convictions, such as proof of intent and knowledge per that of the reasonable person. (10) As result, when faced with female defendant charged with killing child in her care, both the public and the legal system fail to give proper regard to the defendant's choices, and thus fail to accord her the appropriate level of blame. Furthermore, the objectification of the female defendant, particularly when she is mother, as symbol for large subset of women may deny her the ability to explain her own story in the courtroom. I have referred to these effects--the tendency to ignore the actual responsibility of particular defendant in light of pervasive cultural counternarrative and the application of different standards of culpability to different groups of women--as the delegitimization of women's agency. Louise Woodward was indicted for Matthew's death. (11) She was found guilty of second degree murder by jury of nine women and three men and was sentenced, under Massachusetts law, to the mandatory term of life imprisonment. (12) The defense moved for post-judgment relief, and on November 10, 1997, the trial judge vacated the sentence and reduced the jury's verdict from second degree murder to involuntary manslaughter. (13) He sentenced Woodward to 279 days in prison, which she had served in full during the trial and post-conviction process. (14) Less than nine months after Matthew's death, Louise Woodward was free woman. (15) While Woodward fought her battle in the courtroom, Deborah Eappen face[d] the court of public opinion. (16) In the wake of the death of her son, Eappen received hate mail and threatening telephone calls. (17) She was also excoriated in the press, (18) on the radio, (19) and on the Internet. (20) Deborah Eappen and her husband, Sunil, had hired Woodward in order for Eappen to continue her ophthalmology practice part-time; she worked three days week and returned home in the afternoons to nurse Matthew. (21) Although Woodward's defense rested on stalwart claim of innocence, (22) and many of her defenders suggested that Eappen, not Woodward, was guilty of abusing Matthew, (23) the primary criticism of Eappen revolved around her choice to go back to work. (24) By leaving her child with nanny in order to resume her career, Eappen became a public symbol of maternal neglect and yuppie greed, (25) who at least indirectly caused the tragedy by leaving him in incapable hands (26) and at worst deserved to have her baby die[. …

Medical Malpractice in Pediatric Orthopaedics: A Systematic Review of US Case Law.

Compared with other orthopaedic subspecialties, pediatric orthopaedic surgeons are thought to be at greater risk for malpractice claims; however, there is scant research on this topic. The purpose of our study was to characterize publicly available malpractice cases pertaining to pediatric orthopaedics to determine the (1) most common specialties of the physicians implicated, (2) most common diagnoses involved, (3) rate of verdicts in favor of the plaintiff, (4) amount of indemnity payments resulting from all verdicts versus verdicts in which only an orthopaedic surgeon was involved, and (5) outcomes of cases that were appealed. The Westlaw legal database was queried for jury verdicts, settlements, and appellate cases using the search terms "pediatric" AND "orthopaedic" from December 31, 1984, to January 1, 2016, yielding 176 appellate court cases and 189 jury reports/settlements. After excluding duplicate cases and those involving patients aged 21 years or older, 36 appellate and 84 jury reports/settlement cases remained for analysis. Lawsuits against orthopaedic surgeons and pediatricians were most common, in cases involving fracture diagnosis and misdiagnosis of developmental dysplasia of the hip, respectively. Of the 84 cases, 43 rulings favored the plaintiffs. The median (interquartile range) indemnity payment was $900,000 ($1.9 million), and for cases in which only the orthopaedic surgeon was named as the defendant, the median (interquartile range) indemnity payment was $675,000 ($827,000). Of the 34 appellate cases, 16 cases initially ruled in favor of the defendant were upheld and 13 were reversed/remanded. Five cases initially ruled in favor of the plaintiff were upheld, and none was reversed/remanded. Malpractice lawsuits named orthopaedic surgeons and pediatricians more often than physicians in other specialties. Orthopaedic surgeons were sued most often for management of fractures and pediatricians for mismanagement of developmental dysplasia of the hip. Nearly 51% of malpractice cases were ruled in favor of the plaintiff, with high indemnity payments. However, when cases that were ruled in favor of the physician were appealed, most verdicts were upheld. Level IV.

Legal Review of Vasectomy Litigation and the Variables Impacting Trial Outcomes

ObjectiveTo demonstrate the substantial litigious risks associated with vasectomy, a common urologic procedure. We examined the risk factors and types of negligence involved in vasectomy cases that go to trial and their associated outcomes. MethodsUsing the Westlaw legal database, we searched all jury verdicts and settlements for the term “vasectomy” from January 1, 1990 to December 31, 2017. Each case was evaluated for defendant specialty, alleged malpractice breach, resulting complications, outcome including verdict and monetary payment, and whether or not a pregnancy was involved. ResultsThe Westlaw database query returned 67 unique cases which were settled (13.3%) or went to trial in court (86.7%). Of these, the majority (64.2%) were decided in favor of the defending physician. The most commonly alleged breach of duty was negligence in postoperative care (38.8%). This was followed by negligent surgical performance (37.3%) and negligence in performing informed consent (29.9%). The cases filed for negligence in postoperative care, surgical performance, and informed consent were all generally decided in favor of the defendant (61.5%, 56%, and 90%, respectively). Of the 57 cases that specified, 82.5% of the physicians listed in the litigation were urologists. The average settlement won by each plaintiff was $401,913, although most cases were settled for the medical and litigation costs themselves. ConclusionMedical malpractice cases related to the perioperative aspects of vasectomy involve many areas of negligence. This data may guide vasectomists in where to focus time and communication to best serve patients and minimize litigation.

An analysis of malpractice litigation in the surgical management of carotid artery disease.

Carotid artery disease is a common illness that can pose a significant risk if left untreated. Treatment via carotid endarterectomy (CEA) or carotid artery stenting (CAS) can also lead to complications. Given the risk of adverse events related to treating, or failing to treat, carotid artery disease, this is a possible area for litigation. The aim of this review is to provide an overview of the medicolegal factors involved in treating patients suffering carotid artery disease and to compare litigation related to CEA and CAS. Three large legal databases were used to search for jury verdicts and settlements in cases related to untreated carotid artery disease, CEA, and CAS. Search terms included "endarterectomy," "medical malpractice," "carotid," "stenosis," "stenting," "stent," and combinations of those words. Three types of cases were considered relevant: 1) cases in which the primary allegation was negligence performing a CEA or perioperative care (CEA-related cases); 2) cases in which the primary allegation was negligence performing a CAS or perioperative care (CAS-related cases); and 3) cases in which the plaintiff alleged that a CEA or CAS should have been performed (failure-to-treat [FTT] cases). One hundred fifty-four CEA-related cases, 3 CAS-related cases, and 67 FTT cases were identified. Cases resulted in 133 verdicts for the defense (59%), 64 settlements (29%), and 27 plaintiff verdicts (12%). The average payout in cases that were settled outside of court was $1,097,430 and the average payout in cases that went to trial and resulted in a plaintiff verdict was $2,438,253. Common allegations included a failure to diagnose and treat carotid artery disease in a timely manner, treating with inappropriate indications, procedural error, negligent postprocedural management, and lack of informed consent. Allegations of a failure to timely treat known carotid artery disease were likely to lead to a payout (60% of cases involved a payout). Allegations of procedural error, specifically where the resultant injury was nerve injury, were relatively less likely to lead to a payout (28% of cases involved a payout). Both diagnosing and treating carotid artery disease has serious medicolegal implications and risks. In cases resulting in a plaintiff verdict, the payouts were significantly higher than cases resolved outside the courtroom. Knowledge of common allegations in diagnosing and treating carotid artery disease as well as performing CEA and CAS may benefit neurosurgeons. The lack of CAS-related litigation suggests these procedures may entail a lower risk of litigation compared to CEA, even accounting for the difference in the frequency of both procedures.

Apprendi's Limits

This article argues that the recent decision Blakely v. Washington did not decide, explicitly or implicitly, whether the Federal Sentencing Guidelines are constitutional. It also claims that the best theory of jury-trial rights under Apprendi v. New Jersey would uphold the Guidelines because they do not result in a punishment above the crime of conviction's statutory maximum. The idea that the legislative character of statutory maxima is important stems from separation of powers principles. Congress, not the Commission, is responsible for defining crimes, and thereby for prescribing how much punishment is authorized by a jury's guilty verdict. Any sentence below the sentence authorized by the jury is constitutionally permissible, regardless of whether that sentence is determined by rule (per the Guidelines) or by discretion (per indeterminate sentencing). Finally, the article suggests that the chaos arising after Blakely sheds light on the roles of certain repeat-player institutions that participate in constitutional rulemaking.

The CSI effect on cold case investigations

Much has been made about the potential impact of fictional crime scene shows in the media on jury verdicts. However, there has been little discussion about how those programs, and the myriad of other true crime shows and documentaries may otherwise influence the actual investigative process. The intent of this paper is to discuss ways that such shows may impact the investigative process. The focus will be on the investigation of old, unsolved cases, commonly referred to as cold cases, because of the increasing focus on forensics in all aspects of the investigation and the number of television shows that feature such cases.This paper is not intended to be an academic study of the issue, as it relies much on anecdotal evidence and the experience of the author and others. The purpose is to hopefully generate further discussion and research with the goal of improving the investigative process.

Breast cancer medical malpractice litigation in New York: The past 10 years

Medical error is a leading cause of preventable death in the U.S., with diagnostic errors comprising the majority of errors. Delay in diagnosing breast cancer is a unique multidisciplinary phenomenon involving primary care physicians, gynecologists, radiologists, pathologists, and general surgeons. The New York medical malpractice court system remains among the most active court systems in the country. The purpose of this study is to analyze the characteristics of medical malpractice litigation involving breast cancer in New York for the past 10 years. Jury verdicts and settlements from 2007 to 2017 were obtained from a computerized legal database and were analyzed. Data pertaining to defendants, plaintiffs, case outcomes, allegations, and verdicts were collected. The study identified 48 cases of litigation pertaining to breast cancer. Overall, 14 of the verdicts were won by defendants (46.7%). Among the plaintiffs’ verdicts and settlements, the median payout was $1.8 million (mean $2.9) overall, $2.6 million (mean $4.3) for verdicts alone, and $1.68 million (mean $1.9) for settlements. The most commonly named specialty among the defendants was radiology (32) and the second was surgery (15). Inappropriate workup of mammography findings was alleged in 18 cases. The average delay to diagnosis was 13.4 months (sd 7.1). Fourteen cases involved diagnosis at stage 4, nine cases at stage 3, and fifteen at stage 2. The average verdict payout was more than two times higher than the average settlement payout. Errors leading to malpractice claims may be attributable in part to lapses in communication among medical providers involved in the workup of suspicious breast lesions.

Factors Predicting Conviction in Stranger Rape Cases.

Background: Despite there being no legal distinction between different types of rapes (e.g., those committed by strangers to the victim versus those committed by perpetrators known to the victim), stereotypical beliefs about rape have meant that these can be treated differently by the justice system. The aim is to explore the factors that predict juries’ decisions to convict or acquit in stranger rape cases. Methods: We measured the importance of a range of 20 perpetrator-, victim-, and offense-related factors in predicting outcomes for 394 stranger rape cases tried by a jury. A four-stage analytic process was employed: (a) Kendall’s tau-b measured intercorrelations among the factors (predictors); (b) Chi-square and Welch t-tests measured associations between factors and verdicts; (c) binary logistic regression measured the power of factors in predicting verdicts; and (d) Stein’s formula was used to cross-validate the model. Results: Jury verdicts were predicted by five offense-related factors and one victim-related factor. None of the perpetrator-related factors were significant predictors of convictions for stranger rape. Conclusion: The findings have potential implications for victims of stranger rape, as well as prosecution and courtroom policy. We show that if a perpetrator is identified and charged, the likelihood of securing a conviction by a jury is high for victims of stranger rape. We suggest that prosecutors could gather as much information as possible from victims about the factors found to be of importance to juries, and judges could instruct juries on assumptions about the characteristics of the offense in order to challenge incorrect beliefs and stereotypes. Ultimately, this could be used to encourage victims of stranger rape to report and testify in court.

Medical Malpractice Litigation Following Primary Total Joint Arthroplasty: A Comprehensive, Nationwide Analysis of the Past Decade

BackgroundThe purpose of this study is to (1) characterize the most common reasons of medical malpractice litigation against adult reconstruction surgeons and (2) report on the outcomes of these lawsuits. MethodsThe Westlaw legal research database was queried for cases between 2008 and 2018 related to total hip and knee arthroplasty (THA and TKA) in the United States. Causes of the lawsuit, patient characteristics, demographics, state/outcome of verdict or settlement, and indemnity payments were noted. ResultsA total of 148 records (81 females [55%], 67 males [45%]; 83 TKAs [56%], 65 THAs [44%]) were included in the final analysis. For all patients, infection was the leading cause for malpractice litigation (22%) followed by nerve injury (20%). For TKA, infection was the most common cause of lawsuit (33%). In THA cases, nerve injury was the most common reason for lawsuit (38%), followed by leg-length discrepancy (26%). Procedural errors were alleged in 72% of cases, while diagnostic and post-surgical errors were cited in 55% and 32% of cases. A defense verdict occurred in 74% of cases, plaintiff verdict in 21%, and parties settled in 5%. ConclusionInfection and nerve injury were the most common reasons for litigation in TKA and THA, respectively. The most likely outcome of these lawsuits was a jury verdict in favor of the surgeon. Regardless, surgeons should be cognizant of the potential for lawsuit due to these complications and should ensure they inform patients of these potential complications of TJA preoperatively.

04:12 PM Abstract No. 61 Medical malpractice related to inferior vena cava filter placement: how commonly are interventional radiologists named in cases?

Inferior Vena Cava (IVC) filters are commonly placed in patients who are unable to be anticoagulated. Though relatively safe, such procedures are not without risks. Complications may occur and patients may seek legal redress. There remains only a paucity of data understanding IVC filter litigation. The aim of this study was to analyze malpractice trends regarding IVC filter placement across the USA. Westlaw Next, an online legal research dataset with publicly available records throughout the USA was queried. Using the terms medical malpractice and IVC filter complications, we searched all jury verdicts and settlements focusing on IVC filter complications including: filter migration, filter fracture, embedded filter hook, and filter malposition. Social security disability claims and hospital employment contract disputes were excluded from the analysis. Factorial data collection included: patient demographics, physician specialty, alleged reason for the malpractice claim, outcome(s) of trial and awarded payment, procedural characteristics, indication for placement of IVC filter, state demographics and type of IVC filter placed. The search criteria yielded 36 case briefs for initial review; 14 cases were included after application of exclusion criteria. The most common alleged reason for malpractice litigation was damage to surrounding structures (62%). Overall 86% of cases were decided in favor of the defendant. Plain jury verdict and settlement sum was reported for one case, as a plaintiff victory of $3.64 million. Interventional radiologists were involved in only 17% cases, with both cases decided in favor of the defendant. Surgery as a combined group were involved in 50% of cases. The filter manufacturer was sued in 21% of cases, with physicians sued in 36% of cases. IVC filter medical malpractice litigations require a more in-depth analysis in light of recent media attention. Public awareness of complications related to IVC filter placement has increased secondary to recent advertising and marketing by plaintiff attorneys. Most cases were decided in favor of the defendant, with interventional radiologists playing a minor role in lawsuits.Tabled 1SpecialityNumber of LitigationsInterventional radiology2Bariatric surgeon1Cardiovascular surgeon1 (plaintiff awarded)General surgeon1Trauma surgeon1Diagnostic radiology2Internal medicine2Thoracic surgery1Vascular surgery1 Open table in a new tab

"국민참여재판 제도에서 배심원의 역할 및 평결 효력에 관한 연구"

"국민참여재판 제도에서 배심원의 역할 및 평결 효력에 관한 연구"

Analysis of Factors Associated With Malpractice Litigation in Rhinoplasty

Rhinoplasty, the third most common cosmetic surgical procedure in the United States, represents the second most litigated facial plastic surgery procedure. Previous examinations of litigation specific to rhinoplasty are limited. The objective of this study was to comprehensively evaluate rhinoplasty malpractice litigation over the past 30 years and to investigate the financial burden of medical malpractice litigation associated with rhinoplasty, as well as factors that contribute to litigation and negative defendant outcomes. Jury verdict and payment reports related to rhinoplasty malpractice litigations over the past 30 years (1988-2018) were obtained using the WestlawNext and Nexis Uni subscription-based legal databases. The term “malpractice” was searched in combination with “rhinoplasty” and various names associated with the procedure. Cases included in the analysis were reviewed for outcomes, verdict payments, defendant specialty, and allegations raised in proceedings. Of the 46 cases identified, 12 (26%) were resolved with a plaintiff verdict payment. The median payment awarded was $127 500 (standard deviation, $96 590.63). The surgeon specialties found for 35 cases included otolaryngology (17 [49%]), plastic surgery (13 [37%]), facial plastic surgery (3 [9%]), and oral/maxillofacial surgery (OMFS; 2 [6%]). A greater proportion of cases involving otolaryngologists were resolved with payment compared with cases involving plastic surgeons (4 [24%] vs 1 [8%]), though this difference did not reach statistical significance ( P = .26). The most common allegations raised among the 46 cases were poor cosmesis (20 [43%]), intraoperative negligence (18 [39%]), inadequate informed consent (13 [28%]), and nasal function deficits (13 [28%]). Cases had a higher likelihood of being resolved in payment when allegations of cosmetic deformity (7%, 95% confidence interval [CI], −17.55 to 31.91) and nasal function deficit (17%, 95% CI, −9.29 to 45.32) were present, nevertheless these findings did not reach statistical significance ( P = .60 and P = .24, respectively). Rhinoplasty malpractice litigation resulting in payments can create substantial financial burden for the defendant. Common factors cited by plaintiffs for pursuing rhinoplasty malpractice litigation included cosmetic deformity, intraoperative negligence, lack of informed consent, and nasal function deficit. Cosmetic deformity and nasal function deficit allegations tended to result in negative defendant outcomes, though these findings are inconclusive. Our findings reinforce the importance of physician-patient communication, including conducting a comprehensive informed consent process, to limit or avoid postsurgical allegations.

Saliency, Anchors &amp; Frames: A Multicomponent Damages Experiment

Modern technology products contain thousands, sometimes hundreds of thousands, of different features. Nonetheless, when electronics manufacturers are sued for patent infringement, these suits typically accuse only one feature, or in more complex suits, a handful of features, of actual patent infringement. But damages verdicts often do not reflect the relatively small contribution an individual patent makes to an infringing product. One study observed that verdicts in these types of cases average 9.98% of the price of the entire product. While both courts and commentators have blamed the law of patent damages, the role cognitive biases play in these outsized damages awards has been understudied. Relying on decision-making concepts from other contexts, we hypothesize that two biases, namely, a saliency bias and anchoring, may be at work in a patent trial. Since the infringing feature is the most salient feature in a patent trial (i.e. the focus of the trial), jurors may tend to overvalue that feature. Moreover, a patentee’s irrationally high damages demand may “anchor” the juries to that number. We conducted an online 3x3x2 between-subjects experiment to test whether these biases exist and if so, whether particular debiasing techniques may reduce these biases. In eighteen different scenarios, mock jurors were asked to assess damages for different smartphone features. The three manipulations involved: 1) rotating three features so that they were either the feature underlying the plaintiffs’ claim (the “feature-in-suit”) or one of the other features defendant identified as contributing to the smartphone’s overall value; 2) changing the jury verdict form so that mock jurors had to evaluate both the feature-in-suit and other features together; and 3) having the defendant explicitly call out the plaintiff for anchoring the jury in an irrationally high number. The results suggest that some combination of the saliency bias and anchoring were at play when juries assessed damages for all three tested features. However, for the storage feature the results were only significant for the feature’s relative rank, but not its dollar valuation. That may be because mock jurors are familiar with the cost of the increased storage. Modifying the jury verdict form reduced, but did not eliminate, the primary effect of the saliency bias, while the defendant’s tactic of exposing the plaintiffs’ anchor did not significantly reduce damages. In addition, qualitative comments suggested that some mock jurors resisted the jury instructions designed to compensate plaintiffs for the missing feature and instead assessed damages to punish the defendant.

How Punishment Severity Affects Jury Verdicts: Evidence from Two Natural Experiments

This paper studies the effect of punishment severity on jury decision making using archival data from London’s Old Bailey Criminal Court from 1772 to 1871. We exploit two natural experiments in English history, resulting in sharp decreases in punishment severity: the offense-specific abolition of capital punishment and the temporary halt of penal transportation during the American Revolution. Using difference-in-differences to study the former and a pre-post design for the latter, we find a large, significant, and permanent impact on jury behavior: juries are more likely to convict overall and across crime categories. Moreover, the effect size differs with defendants’ gender. (JEL K41, K42, N43)

The Contemporary American Jury

The contemporary American jury is more inclusive than ever before, although multiple obstacles continue to make racial and ethnic representation a work in progress. Drastic contraction has also occurred: The rate of jury trials is at an all-time low, dampening the signal that jury verdicts provide to the justice system, reducing the opportunity for jury service, and potentially threatening the legitimacy of judgments. At the same time, new areas of jury research have been producing important explanations for how the jury goes about reaching its verdict in response to challenging questions, like how to assess damages. Yet the persistent focus on individual juror judgments as opposed to decision making by the jury as a group leaves unanswered important questions about how jury performance is influenced by a primary distinctive feature of the jury: the deliberation process.

Should jurors be allowed to discuss trial evidence before deliberation?: New research evidence.

Traditionally, jurors are not permitted to discuss trial evidence with one another prior to jury deliberation. Allowing such discussions, at least in civil trials, is a jury innovation that has become increasingly popular. Prior field research has generally supported the assumption that this innovation is benign and, in particular, introduces no systematic bias in jury verdicts. These issues are examined again here within an experimental jury simulation study. The opportunity for predeliberation juror discussion (PJD) between the plaintiff and defense cases-in-chief was manipulated. The results revealed that PJD biased jury verdicts. The nature of this bias was not, as commonly suspected, a commitment to evidence heard prior to PJD, but rather a greater weight placed on evidence heard following the PJD. One good explanation of this bias was that jurors acted as if evidence heard prior to PJD had "already been covered" during the PJD, and so primary attention was given to post-PJD evidence in jury deliberations. Little evidence was found to corroborate several other purported benefits or drawbacks of PJD. (PsycINFO Database Record (c) 2018 APA, all rights reserved).