Assessments of Noneconomic Damage Awards in Medical Negligence: A Comparison of Jurors with Legal Professionals
![handle is hein.journals/ilr78 and id is 895 raw text is: Assessments of Noneconomic Damage
Awards in Medical Negligence: A
Comparison of Jurors with Legal
Professionals
Neil Vidmar* and Jeffrey J. Rice**
Many commentators accuse juries in medical malpractice cases of
awarding excessive damages, especially for the noneconomic components
of claims, such as pain and suffering.' They make these accusations in the
absence of rigorous empirical research. This Article reports a controlled
experiment involving a medical negligence case, comparing juror awards
with those rendered by experienced legal professionals. The damages
*Professor of Social Science and Law, Duke University School of Law; B.A., 1962; M.A.,
1965; Ph.D., 1967.
**Residency, Duke University School of Medicine; B.A., 1985; J.D., 1991; M.D., 1992.
This research was supported, in part, by research grants from the Robert Wood Johnson
Foundation and the State Justice Institute (Grant SJI-88-08G-D-061). The first author
received financial support from a Perry Nichols Fellowship-Grant of the National College of
Advocacy. The second author was aided by Fuller-Perdue funds at the Duke University School
of Law. The authors wish to thank the Honorable Anthony G. Brannon and the Honorable
Douglas Albright, Senior Resident Judges of the North Carolina Superior Court, for their
cooperation in providing access to jury pools. Professors George Christie, Valerie Hans, and
Michael Saks made valuable comments on a previous draft of the article. David Landau,
Martha Wach, David Ernteman, and Philip Chan served as valuable research assistants. The
opinions and conclusions expressed in the report are those of the authors and do not
necessarily reflect the views of the funding institutions, the judges, or our colleagues.
Correspondence concerning the article should be addressed to Neil Vidmar, Duke Law
School, Durham, NC 27708-0360.
1. See, e.g., Specialty Society Medical Liability Project, American Medical Association, A
Proposed Alternative to the Civil Justice System for Resolving Medical Liability Disputes: A
Fault-Based, Administrative System 7-11 (1988); Paul C. Weiler, Medical Malpractice on Trial
54-61 (1991); Kirk B. Johnson et al., A Fault-Based Administrative Alternative for Resolving
Medical Malpractice Claims, 42 Vand. L. Rev. 1365 (1989); James Griffith, What Will It Take
to Solve the Malpractice Crisis?, Med. Econ., Sept. 27, 1982, at 193.
Empirical studies that appear to support these claims and that are cited by some of the jury
critics include the following: Mark A. Peterson, CivilJuries in the 1980s: Trends injury Trials
and Verdicts in California and Cook County, Illinois (1987); Mark A. Peterson & George L.
Priest, The CivilJury: Trends in Trials and Verdicts, Cook County, Illinois, 1960-1979 (1982);
Patricia M. Danzon, Report on Awards for Noneconomic Losses, in Medical Malpractice Policy
Guidebook 132 (Henry G. Manne ed., 1985); Randall R. Bovbjerg et al., Juries and Justice:
Are Malpractice and Other Personal Injuries Created Equal?, 54 Law & Contemp. Probs.,
Winter 1991, at 5, 36 [hereinafter Bovbjerg et al., Juries and Justice].
Other claims are reviewed, and the empirical studies are critiqued in the following: Neil
Vidmar, The Unfair Criticism of Medical Malpractice Juries, 76 Judicature 118 (1992)
[hereinafter Vidmar, Medical Malpractice Juries]; Neil Vidmar, Empirical Evidence on the
Deep Pockets Hypothesis: Jury Awards for Pain and Suffering in Medical Malpractice Cases,
43 Duke L.J. 217 [hereinafter Vidmar, Deep Pockets].](ViewImageLocal?handle=hein.journals/ilr78&div=29&collection=journals&method=preview&ext=.png&size=3)
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Assessments of Noneconomic Damage Awards in Medical Negligence: A Comparison of Jurors with Legal Professionals
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