Hearing the evidence of surgical mishap, and putting himself in the jury's place, the judge thought this was what one might call an open-and-shut case.
The testimony - and the exhibits - showed beyond doubt that the defendant surgeon had somehow closed up the patient's abdomen leaving behind a ribbon retractor, a piece of thin steel, 13 inches long, one inch wide.
On the X-ray photograph, Plaintiff's Exhibit 1, the offending article stood out like a sword blade, clear and sharp. The judge could not remember ever seeing more conclusive evidence of negligence. Nevertheless, when the jury returned, its verdict exonerated the doctor completely.
Thinking about the malpractice trials he had superintended, the judge realized that over and over a physician who seemed to have plainly erred nonetheless avoided (or, from the plaintiff-patient's view, escaped) legal responsibility for the apparent mistake.
The outcome was not invariable. The judge remembered a seven-figure verdict against a physician whose decimal-point miscalculation had given a newborn 10 times the normal dose of a powerful drug and left her disabled for life.
Still, when patients sue physicians, out of every 100 cases, the doctors win 80. No one can really explain why, in a society which is supposedly litigation-crazed, doctors seem, as a defendant class, to receive such kind treatment by the citizenry - at least those citizens who sit as jurors.
Malpractice litigation is certainly popular. Some people think the medical profession is a victim of its own success. Medicine and surgery have made such advances in diagnostic techniques, methods of treatment, and surgical magic that the public expects a total cure rate.
In part to meet this propensity to sue, many states have developed judicially regulated screening methods, which enable the courts to eliminate plainly frivolous lawsuits. One would think, however, that cutting out the weak cases early would mean that only stronger cases go before juries, and that therefore the odds should tend to favor plaintiffs.
But given the usual legal rule that the patient has the burden of proving that the doctor failed to meet the standard of the average physician practicing the defendant's specialty, the defendant has a built-in advantage.
Another feature of the landscape that may in part account for the prevalence of defendant's verdicts is the tough-minded approach of the malpractice insurance industry. In the early stages of virtually every serious case, a group of specialists reviews that doctor-defendant's performance. If these experts opine adversely, the insurer will try to settle the case. If, however, they give a clean bill of health, the insurer will not offer any money, at any time. The case will have to go to trial. Such rigorous pre-selection tends to bring to court those cases patients are least likely to win.
Another doctor-favoring factor is the overall popularity of doctors, as compared with, say, judges, lawyers, or journalists. Some skeptics think that even where the evidence is strong, jurors' affection for doctors simply causes them to disregard it.
As the judge mulled over the can't-lose cases in which he had seen patients fail, it seemed to the judge that the controlling cause in malpractice cases was not so-called jury-nullification, but a much homelier matter: In malpractice cases, as in all litigation, how the jurors relate to the individual parties is much more important than the strength of the evidence.
Whether the issue be a forgotten ribbon retractor or an overdose, happy is the litigant whom the facts favor; blessed is he whom the jurors esteem.
* Hiller B. Zobel sits on the Massachusetts Superior Court.