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Empirical data and medical malpractice

A recent Philadelphia medical malpractice case highlights problems with many studies on medical malpractice, as well as potential shortcomings of proposed liability reforms.

Daniel Keenan, born in November 2000, suffers from severe cognitive and developmental disabilities. Doctors blame this on the seizures he regularly had as an infant with West syndrome, which "require[d] frequent hospitalizations, and, ultimately, a feeding tube and daytime nursing care." The vast majority of West syndrome babies suffer severe developmental disabilities, even with successful treatment, which, with technological improvements, has reduced the mortality rate to about 5%.

Plaintiffs argue that Keenan would have been one of the minority of babies who survived West syndrome and severe seizures unscathed and blame his problems on a stroke he had in March 2002, and blamed the stroke on Children's Hospital of Pennsylvania and at least eight of Keenan's doctors. Plaintiffs wanted round-the-clock medical care for a full lifetime; doctors argued that Keenan was unlikely to live past ten and needed only 16 hours a day of nursing care.

The jury eventually found against the hospital and two of the doctors (all of the neurosurgeons and neurologists sued were exonerated), and awarded $30 million in damages. The parties, however, reached a secret high-low settlement, ending the case, but we don't know for how much. (Asher Hawkins, "Jury Awards $30M in Med-Mal Suit, but High-Low Hides Outcome", The Legal Intelligencer, Jun. 13).

  • How can this sort of causation question get to a jury?
  • There was also a battle of the experts on whether the doctors appropriately treated a blood clot. I don't know whether this aspect of the verdict is wrong or right, though I certainly have my suspicions. But one immediately recognizes problems when juries are asked to decide between two experts about the appropriate treatment course. If reasonable doctors disagree, both treatment courses should be considered non-negligent. Otherwise, one jury could find treatment A negligent, while another jury can find the alternative treatment negligent, and doctors are effectively blamed for any bad result. Yes, I know no court adopts a "business judgment" rule for medical malpractice, though this sort of discretion is given attorneys in legal malpractice cases. But why not?
  • Opponents of med-mal reforms will point to the settlement as a reason to disregard the $30 million verdict. But insurance companies have to establish reserves based on possible future losses—and they can't disregard the fact that juries are willing to award $30 million on flimsy evidence. (The Legal Intelligencer kindly notes that, though there were no $10 million verdicts in Philadelphia in 2005, there were three in 2004.)
  • Note also, whenever you see a study mentioning the "median" verdict, that this $30 million verdict has next to no effect on the median, and that the result is therefore highly skewed to dampen the actual impact of large jury verdicts.
  • Only $15 million of the damages were for "pain and suffering." Non-economic damages caps would not have a major effect on the damage to the medical system caused by this case. Real reform needs to be aimed at improving the quality of the evidence jurors hear and of taking reasonable judgment calls out of malpractice.



Rafael Mangual
Project Manager,
Legal Policy

Manhattan Institute


Published by the Manhattan Institute

The Manhattan Insitute's Center for Legal Policy.