Trial Verdict Research Articles

Sleep Surgery and Medical Malpractice

Objectives: Describe and analyze the causes and outcomes of lawsuits pertaining to sleep surgery in order to mitigate future litigation and improve physician education. Methods: The LexisNexis MEGA Jury Verdicts and Settlements database was reviewed for all lawsuits including settlements and trial verdicts related to sleep surgery. Data including type of surgery performed, plaintiff allegation, nature of injury, outcomes, and indemnities were collected and analyzed. Results: Fifty-one cases met inclusion criteria. Of these, 30 were decided by a jury, 9 were settled out of court, and 10 were resolved by other means. Overall, 57% of known outcomes favored the defendant. The most common surgery performed was tonsillectomy (57%) followed by uvulopalatopharyngoplasty (45%), adenoidectomy (31%), and septoplasty (31%). No difference was found between outcomes when comparing the most common injuries cited, including wrongful death (p = 0.572), airway compromise (p = 0.376), and drug reaction (p = 0.443). If failure to recognize a complication (p = 0.034) or delay in diagnosis (p = 0.026) was a component of the legal allegations, the outcome significantly favored the plaintiff. The average settlement ($535,000) and plaintiff award ($1.52 million) were not significantly different (p = 0.13). Conclusions: The majority of outcomes favored the defendant with a trend towards higher payouts in cases settled by a jury when compared to a settlement. Type of injury did not predict outcome. Failure to recognize complications and delay in diagnosis strongly predicted a verdict in favor of the plaintiff.

Litigating Civil Cases in State Intermediate Appellate Courts: Analyzing Decisions to Appeal Civil Trial Verdicts or Judgments and the Impact of Appellate Litigation on Trial Court Outcomes

In the civil justice system, litigants can file appeals as a means of challenging or modifying trial court verdicts or judgments. In most states, intermediate appellate courts represent the first, and in many cases, final arbiter of review for civil cases decided by bench or jury trial. While prior research on state appellate courts has focused primarily on civil appeals in state courts of last resort, there have been few attempts to examine the appeals process in state intermediate appellate courts. The current research attempts to address this gap by examining a national sample of tort and contract trials concluded in 2005 that were subsequently appealed. Specifically, this paper explores the factors that are related to (1) the rates in which civil trials are appealed to intermediate appellate courts, (2) the likelihood that a civil appeal will be decided on the merits, and (3) the probability of trial court outcomes being reversed at the intermediate appellate court level. The paper provides a roadmap for better understanding the case and litigant level characteristics that drive key decisions in intermediate appellate courts.

A Study on guaranteeing the Independence in Civil Participation on Criminal Trial's Deliberation and Verdict

A Study on guaranteeing the Independence in Civil Participation on Criminal Trial's Deliberation and Verdict

Medicolegal Cases for Spinal Epidural Hematoma and Spinal Epidural Abscess

Spinal epidural hematoma and spinal epidural abscess are rare surgical emergencies resulting in significant neurologic deficits. Making the diagnosis for spinal epidural hematoma and spinal epidural abscess can be challenging; however, a delay in recognition and treatment can be devastating. The objective of this retrospective analysis study was to identify risk factors for an adverse outcome for the provider. The LexisNexis Academic legal search database was used to identify a total of 19 cases of spinal epidural hematoma and spinal epidural abscess filed against medical providers. Outcome data on trial verdicts, age, sex, initial site of injury, time to consultation, time to appropriate imaging studies, time to surgery, and whether a rectal examination was performed or not were recorded. The results demonstrated a significant association between time to surgery more than 48 hours and an unfavorable verdict for the provider. The degree of permanent neurologic impairment did not appear to affect the verdicts. Fifty-eight percent of the cases did not present with an initial deficit, including loss of bowel or bladder control. All medical professionals must maintain a high level of suspicion and act quickly. Physicians who are able to identify early clinical features, appropriately image, and treat within a 48 hour time frame have demonstrated a more favorable medicolegal outcome compared with their counterparts in filed lawsuits for spinal epidural hematoma and spinal epidural abscess cases.

Effect of Blinded Experts on Mock Jurors’ Assessments of Credibility and Verdicts in Civil Trials

“Blind expertise” has been proposed as an institutional solution to the problem of bias in expert witness testimony in litigation (Robertson ). At the request of a litigant, an intermediary selects a qualified expert and pays the expert to review a case without knowing which side requested the opinion. This article reports an experiment that tests the hypothesis that, compared to traditional experts, such “blinded experts” will be more persuasive to jurors. A national sample of mock jurors (N = 275) watched an online video of a staged medical malpractice trial, including testimony from two medical experts, one of whom (or neither, in the control condition) was randomly assigned to be a blind expert. We also manipulated whether the judge provided a special jury instruction explaining the blinding concept. Descriptively, the data suggest juror reluctance to impose liability. Despite an experimental design that included negligent medical care, only 46 percent of the jurors found negligence in the control condition, which represents the status quo. Blind experts, testifying on either side, were perceived as significantly more credible, and were more highly persuasive, in that they doubled (or halved) the odds of a favorable verdict, and increased (or decreased) simulated damages awards by over $100,000. The increased damages award appears to be due to jurors hedging their damages awards, which interacted with the blind expert as a driver of certainty. Use of a blind expert may be a rational strategy for litigants, even without judicial intervention in the form of special jury instructions or otherwise.

The emotional witness effect: story content, emotional valence and credibility of a male suspect

Most previous studies of the relation between emotional expression and perceived credibility carried out in the context of witness research have focused on female witnesses, frequently cast in the role of victims of crimes. In this study the focus is shifted, examining the impact of emotional expression on judgments of credibility of a young man suspected of rape, and on judgments of the probability of a guilty verdict in a hypothetical trial. Mock jurors (n=179) viewed one of six video-recorded free recall statements of the incident. Two versions of the testimony were constructed, varying slightly with respect to admitted use of physical force and resistance from the victim. The statements were given with one of three emotional expressions, termed negative, neutral and positive. Credibility judgments were strongly influenced by the emotions displayed but not by the content of the statement whereas judgments of the probability of guilt were not affected by the emotions displayed but were significantly affected by the content of the statement. The results suggest that emotional expression impacts perceived credibility independent of witness gender and victim/offender status.

The Master of the Royal Mint: How Much Money did Isaac Newton Save Britain?

Summary From the extant statistical data, the paper reconstructs several episodes in the history of the Royal Mint during Isaac Newton’s tenure. We discuss four types of uncertainty that are embedded in the production of coins, extending Stephen Stigler’s work in several directions. The jury verdicts in trials of the pyx for 1696–1727 allow judgement on the impartiality of the jury at the trials. The verdicts, together with several remarks by Newton in his correspondence with the Treasury, allow us to estimate the standard deviation σ in weights of individual guineas coined before and during Newton’s Mastership. This parameter, in turn, permits us to estimate the amount of money that Newton saved Britain after he put a stop to the illegal practice by goldsmiths and bankers of culling heavy guineas from circulation and recoining them to their advantage; a conservative estimate of savings to the Crown is £41510, and possibly three times as much. The procedure by which Newton probably improved coinage gives historical insight on how important statistical notions—standard deviation and sampling—came to the forefront in practical matters: the former as a measure of variation of weights of coins, and the latter as a test of several coins to evaluate the quality of the entire population. Newton can be credited with the formal introduction of testing a small sample of coins, a pound in weight, in the trials of the pyx from 1707 onwards, effectively reducing the size of admissible error. Even Newton’s ‘cooling law’ could have been contrived for the purpose of reducing variation in the weight of coins during initial stages of the minting process. Three open questions are posed in the conclusion.

Review of Medicolegal Cases for Cauda Equina Syndrome: What Factors Lead to an Adverse Outcome for the Provider?

Cauda equina syndrome is 1 of a few true surgical emergencies involving the lumbar spine. Although treatment within 48 hours has been found to correlate with improved outcomes, recovery of bowel and bladder control does not always occur, and loss of these functions can be distressing to patients. An understanding of factors affecting the legal outcome can aid the clinician in determining risk management for medicolegal cases of cauda equina syndrome. This study is a retrospective analysis of medicolegal cases involving cauda equina syndrome. The LexisNexis Academic legal search database was used to obtain medicolegal cases of cauda equina syndrome to determine risk factors for adverse decisions for the provider. Outcomes data on trial verdicts were collected, as were associated penalties. Case data were also compiled on age, sex, initial presentation site, initial diagnosis, whether a rectal examination was performed, time to consultation with a specialist, time to completion of advanced imaging study, time to surgery, and neurosurgical vs orthopedic consultation. Based on our study of court cases involving cauda equina syndrome, a positive association was found between time to surgery >48 hours and an adverse decision (P<.05). The actual degree of functional loss did not appear to affect the verdicts. Because 26.7% of the cases involved an initial presentation that included loss of bowel or bladder control, this study emphasizes the importance of cautioning all patients with spinal complaints of the potential risk for cauda equina syndrome.

Learning from Variation in Abnormal Returns in Litigation Event Studies: The Case of Trial Verdicts in Medical Products Mass Torts

Uses a Bayesian model updating of investors' beliefs about eventual defendant costs of resolving mass torts to guide empirical analysis of variation in responses of the values of defendant firms to trial verdicts within medical products mass torts.

The Case for Reasoned Criminal Trial Verdicts

Discussion in the paper focuses on instituting a requirement that juries in criminal cases make public the reasons for their verdicts. The nature of such a requirement is elaborated, as is the way in which defects in the reasons provided might serve as a basis for appealing convictions. Various arguments for adopting such a requirement are considered, as are objections to doing so. In support of the requirement, I contend that it would enable defendants in criminal cases to ensure that their procedural rights have been respected. Such a requirement can also be construed as a condition of the legitimacy of exercises of political power and as an implication of the right of each person to be treated with equal concern and respect. The main objections to such a requirement concern its possible interference with jury independence and the complications and inefficiencies appeals of reasoned verdicts would produce.

Complex questions asked by defense lawyers but not prosecutors predicts convictions in child abuse trials.

Attorneys' language has been found to influence the accuracy of a child's testimony, with defense attorneys asking more complex questions than the prosecution (Zajac & Hayne, J. Exp Psychol Appl 9:187-195, 2003; Zajac et al. Psychiatr Psychol Law, 10:199-209, 2003). These complex questions may be used as a strategy to influence the jury's perceived accuracy of child witnesses. However, we currently do not know whether the complexity of attorney's questions predict the trial outcome. The present study assesses whether the complexity of questions is related to the trial outcome in 46 child sexual abuse court transcripts using an automated linguistic analysis. Based on the complexity of defense attorney's questions, the trial verdict was accurately predicted 82.6% of the time. Contrary to our prediction, more complex questions asked by the defense were associated with convictions, not acquittals.

"Definitional Traps" and Misleading Titles

"Definitional Traps" and Misleading Titles

Considerations for implementing pre‐dispute arbitration agreements in provider contracts

Due in part to the historical increase in large compensatory awards and punitive damages in jury verdicts in medical malpractice/long-term care cases and the concomitant increase in the costs of defending these claims, healthcare providers have sought to reduce litigation costs and avoid exposure to runaway jury verdicts in medical malpractice trials by implementing arbitration agreements in healthcare admission contracts. Risk managers should be aware of the evolving law in this area and recognize that a successful arbitration program requires a commitment to ensuring that the program is administered in accordance with evolving laws.

Clinical Risk and Judicial Reasoning: Editorial Comment

Medical malpractice is a subject which most physicians, at least in the United States, will have to deal with at least once in their career. In this issue of Clinical Orthopaedics and Related Research, several authors present their perspectives on the subject of medical malpractice litigation. Such litigation is a pervasive phenomenon, both in the United States and overseas. Once a lawsuit is filed, the defendant physician must negotiate an unfamiliar landscape that can appear hostile and adversarial, and in which the familiar rules and standards of the medical profession no longer apply. Information is a key resource in dealing with the unknown; to that end, this symposium presents the foundations of how medical malpractice claims are adjudicated, along with the perspectives of several physician and lawyer authors concerning evolving issues that continue to impact and shape medical malpractice litigation in the United States and overseas. The symposium editors hope the eclectic mix of articles and divergent perspectives presented here provide the reader with an insight to the legal system charged with handling medical malpractice claims. The opening article in this symposium is an introduction and overview of the medical malpractice system in the United States; specifically, how allegations of medical malpractice are adjudicated by the law. Many unique characteristics make the American judicial system different from those of other countries. Among these is the reliance on extensive discovery of underlying facts in the litigation by respective counsel, who adopt an adversarial stance on behalf of the represented parties. In contrast to the judicial systems of many other countries, the role of judges in the American system is minimal when compared to the important function of jurors in evaluating the evidence presented and reaching a verdict. Also, importantly, and unlike some other nations, medical malpractice in the United States is litigated under civil liability laws rather than criminal statutes. Practically, this means that remedies are usually limited to monetary damages and related disciplinary sanctions, rather than a jail sentence for the doctor. There is concern that the number of medical malpractice claims in the United States has grown, thereby creating a serious burden on health care delivery. Reforms have been attempted at the state legislature level, and there have been efforts to legislate reforms at the federal level. Some physicians claim there is a medical liability crisis in the United States, driven in part by fear of disproportionately large jury awards that make obtaining medical malpractice insurance prohibitively expensive, compelling physicians to relocate their practices to other states. The concern among health care professionals is that lay jurors may not be effective in adjudicating medical malpractice litigation; specifically, that jurors untrained in medical science may reach erroneous verdicts. Several studies address these concerns in the symposium; from an examination of the medical malpractice crisis, to a study about the outcomes of malpractice litigation, and an assessment of jury verdicts in medical malpractice court trials. Related to the subject of jurors in medical malpractice litigation is the role of the expert witness in litigation concerning professional negligence. American law specifies that in cases alleging professional negligence, such as medical malpractice, an expert from the profession must educate and inform jurors about the applicable standard of care in the case. In recent years, there have been serious concerns that some self-proclaimed medical experts may be willing to deliver misleading and erroneous testimony during litigation, in return for monetary reward. In response, state medical boards and professional medical associations have instituted guidelines for expert witnesses, and begun monitoring expert testimony delivered by their member physicians. Physicians who deliver false testimony under oath may be subject to serious professional sanctions, and even lawsuits, filed by the party injured by the defective testimony. This emerging area of law is explored in the symposium as well. The subject of medical malpractice as experienced in specific orthopaedic specialties, such as adult reconstruction and sports medicine, is presented along with strategies to reduce the risk of a negligence claim. Among these strategies are proposals to have patients sign contracts as a defense to medical malpractice; timely apology for adverse events; examination of the relationship between surgeon age and malpractice risk, and institution of an alternative no-fault system to resolve negligence claims. The guest editors hope you find this symposium informative, controversial, and thought-provoking; the subject addressed is a complex one that involves many stakeholders with competing interests, and one that defies any easy answers.

Sentence Reduction as a Remedy for Prosecutorial Misconduct

Current remedies for prosecutorial misconduct, such as reversal of conviction or dismissal of charges, are rarely granted by courts and thus do not deter prosecutors effectively. Further, such all-or-nothing remedial schemes are often problematic from corrective and expressive perspectives, especially when misconduct has not affected the trial verdict. When granted, such remedies produce windfalls to guilty defendants and provoke public resentment, undermining their expressive value in condemning misconduct. To avoid such windfalls, courts must refuse to grant any remedy at all, either refusing to recognize violations or deeming them harmless. This often leaves significant non-conviction-related harms unremedied and egregious prosecutorial misconduct uncondemned. This Article accordingly proposes adding sentence reduction to current all-or-nothing remedial schemes, arguing that this would provide courts with an intermediate remedy that they would be more willing to grant. It argues that several prosecutorial incentives combine to make sentence reduction an effective deterrent. Moreover, because sentence reduction could be tailored to the magnitude of the violation, it could resolve the windfall dilemma and serve as an effective corrective and expressive remedy.

A History of Forgetting, and the “Awful Problem” of “Race”: A New Historical Note

Always historicize! --Fredric Jameson On March 15, 1891, a New York Times reporter described, in vivid detail, a killing in New Orleans: The doors were flung open and one of avengers, taking aim, shot him through body. He was killed outright and in order satisfy people on outside who were crazy know what was going on within, he was dragged down stairs and through door way by which crowd had entered. A rope was provided and tied around his neck and people pulled him up crossbars. Not satisfied that he was dead, a score of men took aim and poured a volley of shot into him, and for several hours body was left dangling in air. (Chief Hennessy 1) Knowing as we may think we do history of lynching in South during post Civil War period, we would expect know race of man being killed; we would expect victim be black. Instead victim's name was Pollize, and he was one of eleven Italian citizens summarily executed by what Times headline characterized as AN UPRISING OF INDIGNANT CITIZENS (Chief Hennessy 1). The cause of this outbreak of violence was verdict in a sensational trial. The chief of police of New Orleans had been assassinated on doorstep of his own house, and eleven Italians had been arrested and charged with his murder. They were acquitted in a trial that was rife with charges of jury tampering. When not guilty verdict was handed down, notices were placed in every paper in New Orleans to take steps remedy failure of justice in this case, and a mass meeting was announced (Chief Hennessy 1). The Times claimed that those who responded this call action consisted of the best element of city, and this crowd of extra-legal executioners included a prominent lawyer and a politician whose names were given in report (1). More interesting, though, for my purposes in this essay, are reactions these killings. On day of Italians' murders, Cotton Exchange in New Orleans passed following resolution: Resolved, That, while we deplore at all times resort [sic] violence, we consider actions taken by citizens this morning be proper and justifiable (Chief Hennessy 2). Two days after killing, John P. Richardson, whom Times characterized as owner of biggest dry good house in New Orleans, besides thousands of dollars' worth of other property there, and who is famous as largest cotton planter in world was quoted as saying, 'The lynching in New-Orleans Saturday is just thing that should have occurred. It looks bad on its face those away from there, but people who are acquainted with status of affairs can do nothing but commend action taken. The Italian colony in New-Orleans ... is a menace American citizenship and good government. Why, I had rather have a thousand than one Italian. They are treacherous, revengeful, and seek their revenge in most foul and cowardly manners. They have no regard for truth, and Mafia is all powerful with them. The lynching, as terrible as was, is a blessing for New-Orleans.' (Lynchings Justifiable 1) A New York Times editorial echoed these sentiments: These sneaking and cowardly Sicilians ... who have transplanted this country lawless passions, cutthroat practices, and oathbound societies of their native country, are us a pest without mitigation. Our own rattlesnakes are as good citizens as they (qtd in Jacobson 56). Another editorial, while deploring killings, claimed that violence was incited by any prejudice against Italians as such. Nationality had nothing do with it (Editorial 4). Rattlesnakes and Chinamen. The implications of first metaphor are obvious--rattlesnakes are be killed on sight--but implications of term Chinamen (2) is less obvious a hundred years later because we have forgotten complicated history of process in late nineteenth century by which America came be increasingly (ideologically and legally) a white man's country. …

Without Fear or Favor: Judge James Edwin Horton and the Trial of the 'Scottsboro Boys'

One evening, Circuit Judge James Horton, Jr. was having dinner with his family in his antebellum home in central Athens, Alabama; Limestone's county seat. Dinners in the Horton household were an opportunity to discuss events of the day. In early March of 1933, there were plenty of events to discuss. The ringing of their party line phone interrupted the Horton family dinner. The judge excused himself from the table. When he returned a few minutes later, he looked grim. The retrial of the Scottsboro Boys had been transferred to Decatur in neighboring Morgan County. He was to be the presiding judge. Sensational accounts of the alleged rape had run in local papers. Rapid-fire trials, beginning just twelve days after the arrests, gave locals little reason to think their initial view concerning the defendants' guilt was wrong. Few bothered to speculate if the evidence might have looked different had the defendants been given better representation than the half-hearted defense provided by their attorneys.The announcement that Judge James Horton would preside at the retrial of the Scottsboro Boys was received favorably. The Limestone Democrat, Horton's hometown, praised his unusually equable nature, great legal ability and fairness. Horton would give the foreign defense no reason to complain, wrote the paper's editor. The lead prosecutor, Alabama Attorney General Thomas Knight, also expressed pleasure with the choice, telling the press that Horton would make an excellent judge. There was little in Judge Horton's background to give Knight cause for concern. As a state representative and senator for ten years, Horton had devoted himself to election reform and road construction, not contentious social issues. One observer noted, Horton was not very notably social-minded, and was liberal only in the sense of putting the rules of the game above the desire to win. He held many of the beliefs one would expect of a large landowner, politician, and planter in a small town in rural South. He accepted, as did the vast majority of white Alabamans in 1933, the rightness of segregation. Horton approached the upcoming retrial of the Scottsboro Boys with the resolve - despite his belief that the defendants were most likely guilty - to do everything he could to present a trial that would do the South proud. Despite the knowledge that setting aside the Patterson verdict would likely mean an end to his judicial career, the decision for Horton was not a difficult one. A judge must do his duty. My mother early taught me a phrase she said was her father's motto, Horton later recalled. It has frequently come to mind in difficult situations. The phrase Horton learned on his mother's knee was Justitia fiat coelum ruat - Let justice be done though the Heavens may fall.Shortly after Horton's death, county officials installed a plaque on the south wall of the second-floor Limestone County courtroom in which he read his opinion setting aside the jury's verdict in the Patterson trial. In raised bronze on the plaque are inscribed words from the judge's instructions to the jury: So far as the law is concerned it knows neither native nor alien, Jew nor Gentile, black nor white. This case is no different from any other. We have only to do our duty without fear or favor.

On Measuring the Balance between Wrongful Convictions and Wrongful Acquittals in Criminal Trials

Verdicts in criminal trials can err by convicting an innocent person or acquitting a guilty defendant. Recent work shows how the rates and relative numbers of both types of errors can be measured statistically both for judge verdicts and for jury verdicts (Spencer 2007, Gastwirth and Sinclair 1998). The key is to have multiple ratings of the cases, e.g., also record the judge's belief of the correct verdict in a jury trial or an expert observer's belief of the correct verdict in a non-jury trial. Analysis of a non-random sample of state court cases in 2000-01 from four jurisdictions studied by the National Center for State Courts (Hannaford-Agor et al 2003) yields estimates that approximately 17% of the jury verdicts were incorrect: 7% were wrongful convictions and 10% were wrongful acquittals; it was estimated that 12% of the judges' verdicts were incorrect: 10% of judges' verdicts wrongful convictions and 1% wrongful acquittals. Those numbers are subject to a number of limitations, not least the non-representative nature of the sample of cases; this paper reviews those limitations not only for the analysis of the NCSC data but, more importantly, with an eye toward future studies.

When Tort Resolutions Are “Wrong”: Predictors of Discordant Outcomes in Medical Malpractice Litigation

Tort litigation is frequently criticized for producing outcomes that do not match merit. We examined 1,452 closed malpractice claims from five insurers to obtain objective clinical judgments of their underlying merit. We then analyzed predictors of discordant outcomes—payment of apparently nonmeritorious claims and nonpayment of apparently meritorious claims. In multivariate analyses, the odds of both forms of discordant outcome were significantly higher when reviewers judged it a close call as to whether a medical error had occurred. The odds of nonmeritorious claims receiving compensation were significantly higher among cases involving infants and health care facility codefendants and significantly lower when claims were decided by trial verdict. The strongest predictor of rejection of meritorious claims was resolution by trial verdict, which suggests that patients who have been harmed by error fare poorly when their claims are decided by juries.

Europe condemns Libyan trial verdict

Europe condemns Libyan trial verdict