Most lawyers who represent patients injured or killed by medical malpractice are huge supporters of the 7th Amendment. It provides as follows:

Seventh Amendment – Civil Trials. In Suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury, shall be otherwise re-examined in any Court of the United States, than according to the rules of the common law.

The key phrase is “the right of trial by jury shall be preserved.” That right is vital to victims of medical malpractice for at least two reasons. First, medical malpractice plaintiffs deserve to have their cases heard in the fair and impartial manner that only a judge and jury can provide, before whom both sides get to present evidence in support of their cases. Second, medical malpractice plaintiffs deserve to have a jury decide the amount of compensation required to make a particular plaintiff whole, though many states have imposed limits, or “caps” on damages that can be awarded, which infringes on the jury’s function.

But there is a disturbing aspect of the jury trials to which medical malpractice victims are entitled, and hold dear: jury nullification, commonly defined as follows:

Jury nullification occurs when a jury returns a verdict of “Not Guilty” despite its belief that the defendant is guilty of the violation charged. The jury in effect nullifies a law that it believes is either immoral or wrongly applied to the defendant whose fate they are charged with deciding.

The term has always been applied in the context of criminal cases, and has usually been associated with positive results and just outcomes. But this has not always been the case. For instance, racist southern juries have used nullification to clear defendants of any responsibility for hate crimes.

The problem for medical malpractice plaintiffs is that more and more, jurors have resorted to nullification to clear doctors and hospitals that have clearly committed malpractice, according to the evidence.  The reasons for this trend are many. Some jurors believe that they will somehow end up “paying for” a verdict against a health care provider.  They fear health insurance rates will go up and doctors will flee from their state–mostly unrealistic fears created and publicized by the tort reformers who exist to protect corporate profits over patient safety. Some see physicians as just a step down from gods, and cannot bring themselves to allow justice for a wronged patient if it means something negative happening to a medical professional. And despite the best efforts of plaintiff’s lawyers to discover these biases during jury selection, many such people end up on too many juries.  Moreover, the existence of these nullification trends are the worst-kept secret in the court system.  I can’t tell you how many times I’ve been in particular venues that are known for not being “friendly” to plaintiffs, where the judge that my case gets assigned to calls the lawyers up for a bench conference, and in an effort to force an early, low-value settlement, says, “Mr. Barovick, I understand you feel you have a strong case, but remember, this is ___________.”

Allow me to translate. The judge has just told me that jurors in her county don’t like plaintiffs or their lawyers, and are extremely reluctant to find against anyone that has an M.D after their name.  In other words, I have been told that I am going to lose the case if I insist on going through with the trial, so I might as well take the low offer being held out by the insurance company’s lawyer now, because something is better than nothing.

And usually, the judge is right.  So when you hear, year after year, that of the medical malpractice cases that go to trial, most of them are lost, you can factor jury nullification into the equation.  In these hard economic times, most plaintiff’s lawyers are too smart to waste their time and significant outlays of money on so-called “frivolous” cases. In addition to working hard to prepare their case for trial, they are also rolling the dice, and hoping for the best. Unfortunately, jury nullification often makes those efforts fruitless, and leaves clients who have been devastated by medical error wondering why justice has left them behind. That is criminal.

We’re here to listen.

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