I’ve got a question for the US lawyers - to what extent can a jury verdict be appealed in civil matters? The reason I ask is that in the Canadian systems, such verdicts can be appealed, which helps to prevent inflation of awards based on sympathy.
There are two basic grounds for appeal: that the trial judge misdirected the jury on the law they were to apply, and that the jury verdict, compared to the evidence before them, was such that no reasonable jury properly instructed could have awarded. Either one of these grounds is a basis for a re-trial.
These types of appeals are powerful checks on runaway juries who operate on sympathy instead of the evidence and the law. Judges are required to instruct juries about possible ranges of damages, such as the cap on non-pecuniary losses. If a judge errs in that instruction, the jury verdict can be set aside. And if the judge properly instructs the jury and they give an award outside the possible ranges, the verdict can also be set aside.
Both of these options help to ensure verdicts are based on the law and evidence, rather than sympathy. To what extent can jury verdicts in civil matters in the US be similarly reviewed on appeal?
I’d like to repond to Sampiro’s review of the billing and payments in the case described in the Erin Brockovich movie. He only takes into account the costs associated with that particular case. That’s not the appropriate way to assess the fairness of a particular contingency fee.
A lawyer who takes a file on a contingency is accepting that there may be no payment at all on that particular file, and if so, the lawyer pays for all of the costs of that particular file. Lawyers working on contingencies do so on a volume basis - they take a 100 files a year, say, knowing that a large percentage will bring in nothing, another large percentage will bring in relatively small payments, and a relatively small number will bring in a large payment. The large payments on the occasional file thus pay the costs of the other files that the lawyer took on contingency and brought in nothing or only small amounts. That’s why contingency fees are allowed: the occasional large payout on one file cross-subsidizes less successful files, to help ensure access to justice for all litigants who don’t have the money to pay a lawyer.
To assess whether a lawyer’s system of contingenicies is fair, you therefore have to look at all of their files that they take on contingencies. You can’t just focus on the occasional high-payment file and the work associated with it alone. You have to look at all the work the firm has done on contingency during the relevant period.
Jury verdicts can be generally be reviewed on appeal for sufficiency of the evidence, although steps may need to be taken by trial counsel to preserve the issue. In a federal civil trial, to preserve a sufficiency argument trial counsel has to make a preverdict motion for judgment as a matter of law, and either a postverdict renewal of the motion or a motion for a new trial. Determining the standard of review in a federal diversity trial can be ungodly; it’s an Erie problem. See, e.g., Gasperini v. Center For Humanities, Inc., 517 U.S. 1102 (1996).
There is the standard appeal based on a mistake in the law, or the judge can overturn a decision without resorting to appeal (JNOV, though I think it is called something different now) if it flies in the face of the evidence.
There is also the much less known process of remittitur (and its lesser used brother additur). Under remittitur, the judge can reduce the size of an award made by a jury, and then (I believe, my civ pro is weak today) the plaintiff has an option whether to accept the lesser award or go to a retrial. Going to a retrial is not common at all… if you have the same judge, you are not likely to get favorable rulings.
As I alluded to earlier, almost all of the crazy verdicts that you see trumpeted in the press (or in “tort reform” propaganda) tend to get reduced/overturned (according to my civ pro professor, so unfortunately I don’t have a cite, take as you will). But sensible court decisions don’t make as good headlines.
Well reconcile the following factoids (all previous cites):
[ul]
[li]People sue, and in large part win, because of poor outcomes.[/li][li]According to Richard Parker’s cite, about 18% of all doctors are sued at least once.[/li][li]Neonatal Intensive Care physicians are almost all sued at least once.[/li][/ul] Seems to me that concentration of suits in a subpopulation of docs is to be expected, that the vast majority of poor outcomes will be concentrated within the population of those docs who take care of those most likely to have poor outcomes: intensivists, neurosurgeons, OBs, ER docs, trauma surgeons, etc. The rest of the poor outcomes are scattered fairly equally among the rest of us: we pediatricians will occcassionally get a kid who developed meningitis, perhaps even days after they had been seen for an identifiable viral illness and improved from it, and get sued because the outcome of meningitis is horrific, for example.
Yet mistakes happen to us generalists too. It is just that most of the time our mistakes are without devasting consequence. An example: our policy is that expired vaccines are removed from the supply and we have a policy in place to check our supplies for expired vaccines on a regular schedule; further nurses drawing the shot are to check the expiration date before an injection is given and verify that it is the right medicine and not expired. Nevertheless in our office the nurse whose job it was to check for and to remove the expired vaccines had delayed her doing it one week and a different nurse failed to check the expiration date. An expired vaccine was given. Failures all around. Serious breaks in normal protocols by several employees. Good people who rarely make mistakes. Patient family was told as soon as it was realized what happened. Could have been a lawsuit … except that there was no harm other than the need to repeat the vaccine. We have now added in extra steps to verify that expired vaccines are removed. We have added extra training and emphasis on the importance of checking the dates on the vials. We reported the problem to our large group and before similar problems occured in other sites those extra steps have been implemented system wide. The errors were human. Human error is unavoidable. The solution to reduce future risk is systems based. The likelihood of a suit was small because of the lack of harm, but a similar human error could have a more devasting outcome in a different specialty and that would have been a suit.
Question for our Canadians: do you have any numbers on how your rate of medical errors compares to ours? Again, if fear of lawsuits inspires fewer errors and better care, then Canada should be a relative hotbed of negligence compared to the US. My sense is that such is not so, am I wrong?