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Why Winners Win: Decision Making in Medical Malpractice Cases

Ms. Crawford is Faculty, Trial Advocacy Course, Harvard Law School, is Contributing Editor for publications of the National Law Journal, and is a former Health Law Commissioner for the American Bar Association.

Neither Ms. Crawford nor the department with which she is affiliated has received anything of value from or owns stock in a commercial company or institution related directly or indirectly to the subject of this article.

A high percentage of physicians will, at some time in their careers, face a lawsuit, possibly finding themselves in the courtroom even when they have not made a medical mistake. Despite the presumption that juries are biased in favor of injured plaintiffs, physicians win most of their trials. Why this occurs and how juries make their decisions are topics of ongoing interest. Research has been done on jury decision making, including what, if any, the roles of race and sex play in the process. It is essential that those who enter the courtroom understand both the power they have to influence the outcome of their own trials and why it is that issues of character continue to be so important to juries.