R. Austin Wallace, MD
Chairman, President and CEO

Letter from the ChairmanFebruary 2020

"A Jury of Our Peers?"

It is been my pleasure and privilege since 2012 to be a member of the Board of Directors of the Medical Professional Liability Association, formerly known as the Physician Insurers Association of America until last year’s rebranding. One of my duties for that organization is to cochair the Regional Member Roundtable, a group of regionally focused MPL companies like our Mutual. At our 2019 spring meeting, the speaker was Claire Luna, who is CEO of JuryImpact, Inc., a company that does deposition prep for defendants in medical liability lawsuits along with jury consulting for their counsel across the U. S. She and her firm did a survey of more than 500 jury-eligible people recently which revealed what I found to be some very interesting and occasionally very troubling findings about the attitudes of potential jurors, particularly millennials. Millennials (those born between from around 1980-1982 until the mid-1990s) now represent the largest jury-eligible age group nationwide. The positive response percentages in the survey are noted below, with those of millennials shown in parentheses:

Litigation:
~67%: If a case gets to the courtroom, it must have merit (80%)
~65%: There is a mechanism in the legal system to throw out frivolous lawsuits (74%)
~27%: Filing a lawsuit is too hard (40%)
~35%: Filing a lawsuit is too easy (15%)
Disregard for the law/instructions:
~43%: Would let sympathy affect verdict even if forbidden (55%)
~34%: Would decide cases based on fairness rather than the law (46%)
~19%: Would consider [awarding] attorney fees even if told not to (46%)
~14%: Would do Internet research even if the judge forbids it (44%)
Damages/responsibility:
~77%: Hospital is responsible if a person is released in worse condition than when they arrived (consistent across generations)
~43%: Would award money for medical bills even if no fault [is found] (62%)
~39%: Would award more than plaintiff demand to “make sure plaintiff is taken care of” (52%)
~26%: Would award more money if defendant is large hospital chain/medical system (42%)
~12%: Would increase award with knowledge that insurance would pay for it (22%)
~44%: Punitive damages claim increases likelihood that mistake was made (consistent across generations)”

A review of the statistics reveals that there is more bad news than good in these survey results. It is apparent that millennials tend to be significantly more likely to be overly generous with jury awards, and it is somewhat shocking that simply having a lawsuit get to the courtroom means that it has validity to potential jurors and that merely making an almost always spurious claim for punitive damages increases their concern about a mistake being made in all generations surveyed.

It is a given that our respect for the rule of law has defined Americans for the entirety of the existence of our great country, and trials before juries of our peers are essential to this process. We physicians not infrequently complain that a jury of lay people does not represent a true jury of our peers. However, even though the above statistics are often somewhat startling, we need to be very careful about what we wish for, as our own physician peers can be much more critical of medical liability defendants’ actions than lay people. Dr. Robert Ghiz, our founding Chairman of the Board at the Mutual, called this the “Grand Rounds Effect” when he spoke at our CARE risk management seminars, and I picked up the term from him. During our training as physicians, we are conditioned to look at medical care with a very critical eye as part of the very necessary performance quality improvement process for residents, interns, and attendings, but this critical eye often does not translate at all well to the legal arena. Indeed, it has been noted that physicians on medical review panels in other states tend to be quite hard on their colleagues.

Therefore, despite its flaws (as evidenced by a number of the attitudes of potential jurors demonstrated in the survey done by Claire Luna and her company,) a trial by a jury of our (lay) peers seemingly remains the best option for us physicians and continues to stand the test of time despite societal changes. Please be assured that your Mutual will continue to monitor trends such as these that affect you, as we are Physicians Insuring Physicians.

Sincerely,
R. Austin Wallace, M.D.