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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

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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 patientthat 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 commentatorsin 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 paymentat 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 casesgenerally speaking, fewer than 18 percentactually 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

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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

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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)

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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 cases78.6 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 comparedthat 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 protectionand these cases made up 61.8 percent of the successful labor and delivery cases. For cancer cases, class 2 was predominantincomplete 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. REFERENCES 1. Vander Kolk, K. 1985. Is that all there is? Am. J. Obstet. Gynecol. 152:139-144. 2. Ibid., p. 142. 3. Ibid., p. 140. 4. Ibid., p. 142. 5. Weir, B., J. Barlow, and B. Mydland. 1987. Hell in a bucket. Grateful Dead: In the Dark. AC-8452. New York: Arista Records. 6. Schulman, H.1984. The doctor Third parties. Am. J. Obstet. Gynecol.149:624-627. 7. Johnson, S.1985. Malpractice costs vs. health costs. New York Times. July 19, p. A-14.

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192 MEDICO P~FESSiON~ I: VOILE ~ 8. American Medical Association, Council on Long-Range Planning and Development (with the cooperation of the American College of Obstetricians and Gynecologists). 1987. The future of obstetrics and gynecology. JAMA 258:3547-3553. 9. Vander Kolk. 1985, p. 140; see note 1. 10. Johnson, K. 1987. Beyond tort reform. JAMA 257:827-828. 11. Bowen, 0.1987. Congressional testimony on Senate Bill S.1804. JAMA 257:816-819. 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, 9, 81, 137-138, 140-142. 18. Burrow, D., and J. E. Collins. 1987. Insurance "crisis"Texas style: The case for insurance reform. St. Mary's Law J. 18:759-796; Danzon, P. M. 1983. An economic analysis of the medical malpractice system. Behav. Sci. 1:39-55; Gifford, D., and D. Nye. 1987. Litigation trends in Florida: Saga of a growth state. Univ. Fla. Law Rev. 39:829-875. 19. Danzon, P. M. 1985. Medical Malpractice: Theory, Evidence, and Public Policy. Cam- bridge, Mass.: Harvard University Press. 20. General Accounting Office (GAO), U.S. Congress. 1986. Medical Malpractice: Case Study on Arkansas. GAO/HRD-87-215-1. Gaithersburg, Md. See also medical mal- practice case studies on California, Florida, Indiana, New York, and North Carolina, also published in 1986; and see U.S. Department of Health and Human Services. 1987. Report of the Task Force on Medical Liability and Malpractice. Washington, D.C.: Government Printing Office. 21. See, for example, Galanter, M. 1986. Jury shadows: Reflections on the civil jury and the litigation explosion. Paper presented at the 1986 Warren Conference. Boston. June 12-15; Mnookin, R., and L. Kornhauser. 1979. Bargaining in the shadow of the law; The case of divorce. Yale Law J. 88:950-977. 22. Galanter, M.1983. Reading the landscape of disputes: What we know and don't know (and think we know) about our allegedly contentious and litigious society. UCLA Law Rev. 31:4-71; Miller, R., and A. Sarat. 1980-1981. Grievances, claims, and disputes: Addressing the adversary culture. Law Soc. Rev. 15:525-566. 23. Brook, R., and R. Stevenson.1970. Effectiveness of patient care in an emergency room. N. Eng. J. Med. 283:904. 24. Brook, R., M. Berg, and P. Schechter.1973. Effectiveness of non-emergency care via an emergency room. Ann. Intern. Med. 78:333. 25. Danzon. 1985; see note 19. 26. California Medical Association and California Hospital Association. 1977. Medical Insurance Feasibility Study. San Francisco: Sutter. 27. Danzon. 1985, p. 20; see note 19. 28. National Center for Health Statistics. 1987. Summary: National Hospital Discharge Survey. Advance Data. Washington, D.C.: Government Printing Office. 29. Texas Almanac and Industrial Guide, 1986-1987. 1985. Dallas: The Dallas Morning News, p. 628. 30. Ibid. 31. California Medical Association and California Hospital Association.1977; see note 26.

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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- ports. Austin. 36. Texas State Board of Medical Examiners. 1987. Medical Malpractice Statistics Re- ports. Austin. 37. May, M., and L. DeMarco. 1986. Patients and doctors disputing: Patients' complaints and what they do about them. Disputes Processing Res. Prog. Work. Pap. Ser. (Univer- sity of Wisconsin Law School, Madison) 7(7):1. 38. National Association of Insurance Commissioners. 1980. Malpractice Claims: Final Compilation. Brookfield, Wis. 39. Texas State Board of Medical Examiners. 1988; see note 35. 40. American Hospital Association. 1985. Annual Survey Standard Report. Chicago. 41. Galanter. 1986, p. 19; see note 21. 42. Ibid., p. 2. 43. Galanter, M. 1981. Justice in many rooms. J. Legal Pluralism 19:1-47. 44. Daniels, S. 1986. Civil juries, jury verdict reporters, and the going rate. Paper presented at the annual meeting of the Law and Society Association. Chicago. May 29-June 1. 45. Daniels, S., and J. Martin. 1986. Jury verdicts and the "crisis" in civil justice: Some findings from an empirical study. Justice Sys. J. 11:321-348. 46. Daniels. 1986; see note 44. 47. Daniels and Martin. 1986; see note 45. 48. See, for example, California Medical Association and California Hospital Association. 1977; note 26. National Association of Insurance Commissioners, 1980; note 38. Danzon. 1985; note 19. 49. For example, California Medical Association and California Hospital Association. 1977; see note 26. Danzon. 1985; see note 19. 50. California Medical Association and California Hospital Association.1977; see note 26. National Association of Insurance Commissioners. 1980; see note 38. Danzon. 1985; see note 19. 51. Daniels and Martin. 1986, p. 338; see note 45. 52. Rucker, M. P., and C. Haskell. 1921. The dangers of pituitary extract. JAMA 76:1390-1393. 53. Physician's Desk Reference.1962, 1963, and 1985. Oradell, N.J.: Medical Economics. 54. Parke-Davis Pharmaceutical Co. 1963. [Advertisement]. Am. J. Obstet. Gynecol. 87:16. 55. Zackey, J. 1980. Pitocin: Lethal agent in obstetrical malpractice. Trial 16:57-59. 56. Food and Drug Administration, U.S. Department of Health and Human Services. 1978. FDA Drug Bulletin 1. Washington, D.C.: Government Printing Office. 57. Goodman, L., and A. Gilman.1956. The Pharmacological Basis of Therapeutics. New York: Macmillan; Rucker and Haskell. 1921; see note 52. Woodbury, R. A., W. F. Hamilton, B. E. Abreu, R. Torpin, and P. H. Friedman. 1944. Effects of posterior pituitary extract, oxytocin (Pitocin) and ergonovine hydracrylate (Ergotrate) on uter- ine, arterial, venous and maternal effective placental arterial pressures in pregnant humans. J. Pharmacol. Exp. Ther. 80:256-263. 58. Ibid.