Novak Verdict Draws Fresh Focus on Juries Experts Debate Growth of Awards

Article excerpt

Byline: Rich Tucker, Times-Union staff writer

When a Jacksonville judge last week rejected the $5.35 million malpractice verdict jurors awarded to former Jaguar Jeff Novak, medical defense attorneys called the case a frightening example of what happens when juries make decisions based on emotion.

They blame rash decision making for driving up malpractice awards nationwide, and they cite the judge's decision in Novak's case as an example of the legal system correcting itself.

But some legal experts wonder if the trend of growing malpractice awards is an unavoidable consequence of jurors being asked to play lawyer, doctor and judge.

"There's always been the concern that jurors, particularly when they're frustrated with the system, take matters in their own hands to produce what they see as a fair verdict," said Scott Makar, a Jacksonville lawyer who helps write the instructions judges read to juries to explain the law. "They look for a verdict that fits their own sense of fairness, rather than what the law calls for."

To prevent such jury vigilantism, courts have the jury instructions, which are a guidebook designed to explain to jurors how the law applies to the case they are to decide. Some believe those instructions often are as complex as the laws they are meant to simplify.

"There is no doubt that jury instructions need to be in more plain English," said Arthur Patterson, a national expert who has studied how jurors decide cases for more than 20 years. "If they can't understand the law easily, most of the time, jurors won't follow it."

Malpractice cases incorporate several complex elements of the law for jurors to tackle. A plaintiff must prove a doctor's care was below an acceptable industry standard. And beyond that, a plaintiff must prove that negligent care caused some particular damage or harm. That high standard leads to two out of three malpractice trials ending with a jury verdict against the plaintiff.

Still, Patterson said jurors in malpractice cases frequently lose sight of the fact that negligent care alone is not a reason to find for the plaintiff.

"What jurors tend to do is decide is, 'Did the doctor do something wrong?' " he said. "If they decide the answer to that question is 'Yes,' and since the award is not coming out of their own pocket, they are going to award what they feel is fair."

Juries have been awarding ever larger sums in medical malpractice cases in recent years. In 2000, the median award was $1 million compared to half that five years earlier, according to Jury Verdict Research, an independent firm that analyzes verdicts from juries nationwide.

Some plaintiff attorneys say jury awards are up because current cases that get to trial involve more egregious examples of negligent care than in past years. But many legal experts say jurors' views on what makes an appropriate award have been skewed.

"They see professional athletes making tens of millions, they see the lottery and they believe a million dollars is not a lot of money," Patterson said. …