County’s Juries Unkind to Plaintiffs, Survey Says

A plaintiff in any type of civil case stands less than a 50-50 chance of winning a favorable jury verdict in San Diego’s county courts, a survey reveals.

The odds are particularly low for medical malpractice cases, the survey indicates. That sort of suit against a doctor or hospital has only a 41% rate of success with San Diego juries, and even winning cases yield damage awards that average less than those from any of California’s other big-city courts, it says.

San Diego lawyers said the results of the American Bar Foundation survey wouldn’t surprise an attorney who has any familiarity with the local courts.

“It’s what we know San Diego to be as far as all jury verdicts, not just medical malpractice,” said Marc D. Adelman, president of the San Diego County Bar Assn.

According to the survey, a study of medical malpractice cases, winning malpractice suits in San Diego courts produced a median verdict of $136,210. The average award in each of the other California counties in the survey was higher--ranging from $5,592 to $124,608 more.

San Diego “just has not evolved in the same way larger cities have, like Los Angeles or San Francisco or New York,” said Virginia C. Nelson, president-elect of the San Diego County Bar Assn.

San Diego retains a community feel more typical of a smaller town, so jurors “may tend to be overly protective,” particularly toward doctors, said Nelson, who specializes in medical malpractice suits.

“People are conditioned to believe that whatever the doctor did is right,” Nelson said. “You have to have a strong if not overwhelming case. And even then, they are lost.”

Low Rates Nationwide

A low rate of success and a relatively modest award were typical not just in San Diego but nationwide, according to the survey. That finding indicates medical malpractice cases should not be included in sweeping claims about the jury system used to justify recent changes in the civil justice system, researcher Stephen Daniels said.

“The thing I generally point to is that plaintiffs do not generally win medical malpractice cases,” said Daniels, a research fellow at the foundation, an independent research institute affiliated with the American Bar Assn.

“If you’re talking about jury cases in general, plaintiffs (nationwide) are more likely to win than not,” Daniels said in a recent phone interview. “But not medical malpractice cases . . . and they don’t win an inordinate amount of money.”

Daniels studied all cases that went to a jury from 1981 to 1985 in 46 counties in 11 states, a total of 24,625 verdicts. California counties in the study were Alameda, Fresno, Los Angeles, Sacramento, San Francisco and San Diego.

Most civil disputes, Daniels noted, settle outside of trial through negotiation. But jury verdicts help form the “context for negotiation and settlement” because they influence “whether and how much compensation insurance companies are likely to pay on similar claims,” he said.

Pain and Suffering

Daniels chose the 1981-85 period to study because those years came “just before people were deciding there was a crisis” in tort litigation, a period that produced reforms such as California’s Proposition 51. The 1986 “deep-pockets initiative” limited liability for non-economic damages--”pain and suffering”--according to proportion of fault.

Of the 24,625 jury verdicts, plaintiffs won 57%, Daniels said.

Plaintiffs in medical malpractice cases, however, fared much worse. The 24,625 cases included 1,886 malpractice cases, and plaintiffs won only 32.4% of those, Daniels said.

In San Diego, the success rate for all cases was 48.8%, making it the only one of the six California counties where a plaintiff stood less than a 50% chance of winning when a case went to trial.

In fact, San Diego was one of only three counties among the 46 in the survey to register a success rate for plaintiffs below 50%, Daniels said in the study. Most sites--29 of 46--had success rates between 55% and 65%, he said.

Survey Published in May

In medical malpractice cases, the San Diego success rate dipped even lower, to 41%, Daniels said in the study, first published in May in a lawyers’ trade magazine called Trial. The study recorded 39 medical malpractice verdicts during the period in San Diego, 9.5% of the total verdicts.

The highest average award, measured among only those 24 sites with five or more successful malpractice cases, was $810,000. Honors went to Wyandotte County, Kan., in metropolitan Kansas City.

In the four California counties besides San Diego with five or more successful cases--all but Fresno--average awards ranged from $141,802 in Alameda County to $260,818 in Sacramento County. The $136,210 average in San Diego was below all four.

A 1975 California law, designed to protect doctors and hospitals from malpractice suits by limiting damages for “pain and suffering” to $250,000, begins to explain why awards around the state are comparatively low, Nelson said.

It’s “an uphill battle,” Nelson said. “It’s difficult to find against physicians. If you do, it’s difficult to get a (sizable) verdict. If you do get (non-economic) damages, they get cut.”

Size of Awards Questioned

Why average awards in San Diego are even lower than the rest of the state, however, is an open question.

“We always have enjoyed that sort of reputation in this area,” said Dr. John Stevens, a San Diego allergist and chairman of a Medical Society risk management program. “I suppose it’s a more conservative group of people in San Diego than in other parts of California.”

In addition, Stevens said, “We have for the most part well-trained physicians in San Diego, though I think that is true of other major metropolitan areas, too. But physicians are well-trained here.”

Unique to San Diego, however, is a large number of retired people, especially former military personnel, Adelman said.

“I think we’ve got a lot of retired military people here, that may be a factor. A lot of retired people. There’s a generation, I don’t want to call it a gap, but there’s a difference between an average lawyer and your average case and your average juror, who might be older than in some other county,” he said.

‘Conventional Wisdom’

Daniel T. Broderick III, a plaintiff’s attorney who holds medical and law degrees, said Adelman’s view was the “conventional wisdom, but I disagree with that.”

Juries aren’t packed with retired military personnel, he said, and those who do serve are “perfectly capable of being objective. Maybe their political views are conservative, but I don’t think that translates into a defense verdict in medical malpractice cases.”

San Diego actually is known in the legal community for “better jurors,” said Douglas R. Reynolds, a San Diego attorney who frequently defends doctors and hospitals.

“I think every lawyer that’s seen a San Diego jury comments on their intelligence,” Reynolds said. “We get a good cross-section, but the overall level of intelligence and experience is better than other big-city juries. That may make them more conservative. I think it makes them more able to reach a fair, reasonable verdict.”

Broderick, a former county bar president, said the trend in San Diego is simply part of a “national phenomenon. I’d be surprised if there were many jurisdictions where the percentage of wins by plaintiffs is greater than 50%.”

Among the 24 counties with five or more successful malpractice verdicts, only one had a rate greater than 50%. In Bronx County, N.Y., the mark was 55.8%.

Doctors Settling More Cases

Doctors and hospitals are settling cases they suspect they could lose, Broderick said. “That’s what’s happening.”

Reynolds confirmed that lawyers “probably settle a few of the more serious cases in San Diego that might get tried elsewhere. That’s why you see $4 million, $5 million verdicts in L.A., while in San Diego that same case might be settled.”

Should Never Get That Far

Some medical malpractice cases that do go to trial, pushed there by lawyers who were “not very discriminating” in the cases they accepted, should never get that far, said David J. Danielsen, a San Diego attorney who often defends doctors and hospitals.

Plus, there are “a lot of medical malpractice cases that get brought because there are too many doctors around,” Danielsen said.

“It’s not that they are bad doctors, but that (needing work) they act as expert witnesses,” he said. “That’s good enough to get cases started and to trial. But when these charlatans get to trial, they lose the cases. I think there are a lot of charlatan expert witnesses in this town or available to come into this town.”