SOME THOUGHTS ABOUT MEDICAL MALPRACTICE CASES

I have some personal views about plaintiff representation of a medical malpractice case based upon experience and research. The basic ones include: (1) trials are struggles for juror impression and not a contest of rational logic. (2) Values and strongly held beliefs along with significant past experiences have a powerful impact on decisions vs rational logic and (3) proof of betrayal is significantly more powerful than proof of a medical mistake or negligence.

To outline what we all know from a variety of juror and communication research we have learned the following things:

We know from fMRI studies and research that the real motivators for decisions are our emotional reaction and subconscious thinking process coupled with the primitive brain function. This occurs outside of rational reasoning. That means that trials are fundamentally struggles over strong impressions and not a process of logical reasoning. Furthermore, we now know this process largely occurs at a subconscious level rather rapidly and is then ratified by our intellectual mind.

We also know the compelling underlying issues in the case resonate with jurors . When they involve their value systems or strongly held beliefs they have as profound effect on the decision process. Research has shown these values and beliefs will prevail even over our personal self-interests. Also, our past significant experiences play a major role in our decisions as well. These past experiences are unconsciously applied to similar issues involved in trial and are used to arrive at conclusions.

In addition, we know that whenever a significant issue in the case or the outcome of the case is seen as potentially having a personal impact upon the juror or their families or their community they will protect their self-interests. This happens at a subconscious level in the primitive brain. One primary drive is survival. Issues that are seen as issues of self-protection will be treated that way in the decision process.

In addition to these principles of decision making, there is very important issue in all damage cases, but particularly malpractice cases. Professor George Lakoff has written and lectured about the influence of right and wrong concepts in decisions. He has said “a trial is a morality play of right and wrong.” Jurors, particularly conservative and evangelical jurors are strongly inclined to feel, in general, medical mistakes are just unintended mistakes and should be forgiven, but betrayal involves intentions of wrong doing and should be punished. It is consistent with the Biblical concept of forgiveness and punishment.

When a malpractice case is presented chiefly as a negligent act the jurors inclination is to forgive. But, when it is presented as a betrayal of the duty owed by the doctor or hospital, particularly for financial or self interest reasons, the motivation to not only punish, but to punish in a way that will prevent further similar conduct. As a consequence, we need to always look for the motive or reason behind the negligent act.

One note: I don’t think we should necessarily use the term “betrayal.” I do believe case stories should always start with the defendant and not the plaintiff. I think our case stories should make the defendant the villain but I think the “betrayal” is the conclusion jurors draw from the story being told about the conduct of the defendant. It is the description of what happened that says it is a betrayal.

A betrayal generally is a breach of a duty jurors commonly believe is owed and which was intentionally violated for personal gain. While it certainly is more helpful to have evidence of the motive the issue can be involved in the case by the circumstances. For example by rhetorical questions:

“You’re going to have to decide why the nurses and doctor ignored the obvious issue of whether the fetal heart monitor was reading the mother and not the child’s heart rate. Why did they ignore the clear warning in the fetal heart monitor manual about this risk?  You will have to determine why they didn’t simply attach a pulse oximeter to the mother’s finger as a safeguard. It will be up to you to determine the truth behind the reason why this medical team totally failed in it’s duty to care for this unborn child.”

Here are other examples of the same approach suggesting a reason:

“What is the truth about why the doctor and nurses responsible for the protection of this infant failed in such a serious way? Was it because the hospital had no policy for this kind of delivery? Were they complacent and not paying attention?

We look for motive with questions like these:

“Were there policies or procedures which were ignored or done incorrectly? Why weren’t they followed? Was there lack of training a factor? Are there attitudes by the doctor or nurse that are involved? What about ego factors, fear factors – cover up?”

There are cases where there just isn’t any obvious evidence or suggestion of a real betrayal of duty, but I think we should always expand our discovery in every case to explore any possible motive behind the negligence.

My thought s that a betrayal, in the way I use the term, means a breach of a duty jurors commonly believe is owed under the circumstances and which was violated for personal gain. While it certainly is more helpful to have evidence of the motive for the betrayal, this issue can be raised by the circumstances in the case and expanded through raising questions about why negligence happened. Rhetorical questions are one way. “

One additional point about this subject. The  concept of betrayal is easier to persuade a jury about when it involves a corporation rather than an individual. In these corporate cases I think we should look for potential corporate negligence claims in addition to any individual act of negligence. We all know a claim of corporate negligence for a failure of a hospital to have appropriate training or rules of procedure which explains why the negligence occurred is generally more acceptable then the attack for an individual negligent act. Jurors also know there is a likelihood they or their family will end up in a hospital. As a result they are motivated to protect ourselves by enforcing a hospital duty of care to patients. In addition, there is the obvious benefit about being able to pay a verdict as well as a lack of sympathy for a hospital corporation vs an individual.

EXCERPTS FROM GERRY SPENCE ARGUMENT IN HUNTER v LEWIS MALPRACTICE CASE

In 1982 Gerry Spence tried a case in Provo Utah, Hunter v. Lewis. The transcript of his opening summation has examples of persuasive ideas worth reviewing. Here are a few of them:

“Now, in a little while the case of Joshua Hunter is going to be in your hands. And there’s something, however, that I want to say to you about that that’s important for you to understand; and that is: that each one of us are human beings, just like them, and each one of us have a limited but beautiful human power. But, as a jury together, there is a kind of mystical power that you have with the power of each of you combined together. When you get together you must somehow feel the strength of the mystical power that’s given to you, by the law, in the form of a jury. Maybe the average age of this jury is 40 years of age. There are eight of you who will make a decision in this case. 8×40 is 320 years of experience that this jury has.

Each one of you have your own special knowledge. Those of you who have labored with your hands know the beauty of being given the gift of labor and sweat. And those of you who have walked peacefully in the mountains know the beauty of the God-given gift of walking. And those of us who know the peace and joy in our souls and the gift of speech and know the preciousness there is to share ourselves with language with others, and those who have been in business with things in commodities and property, in cash, in valuables, know that the most valuable thing of all is just to be healthy, happy human beings.

Those of us who have tried to make the world better, because have tried to devote our lives to the betterment of man and to the glory of God know that here in this case is the great place of that work.Now, it’s not going to be a perfect justice, because the only perfect justice that could be given would be to give Don and Sheila back the baby who was perfect before was placed in the hands of this hospital. That would be perfect justice. It is beyond our ability.

I haven’t made your job easy. I have asked for $40 million dollars. People have said how can you can ask for that amount of money? ?Some have been outraged. But I’m not ashamed to ask for it. Justice supports every penny of it. But we have been given the law and the tools to do the best that man can to and although it’s not perfect I’m asking that it not be compromised in this case. We have been taught there isn’t going to be big justice for little people; that there’s big justice for big people. If we took one of the racehorses of Mr. Rockefeller which is worth$80 million and ran it down on the road, he would want $80 million for his racehorse. He’s a big man and he’s entitled to big justice he would say: “that was my horse and I’m entitled to every penny of it, and give me$80 million.” Now we have been taught that little people are entitled big justice.

Now I want you to know something. You are the only people who can deprive Joshua of his full justice now. That burden is going to be yours. That burden is going to be in that verdict. That burden, ladies and gentlemen, is in that special verdict form. This is his life. When you fill that in, you have the power to determine his life

ANOTHER LOOK AT WHETHER YOU SHOULD TELL THE JURY DURING VOIR DIRE THE AMOUNT YOU WILL ASK FOR AS A VERDICT

There are jurisdictions where a plaintiff is not entitled to tell the jury the amount they will ask for as a verdict. But, in those states where it is allowed, should you disclose the amount in voir dire? Or wait until opening statement? Or wait for summation or perhaps not suggest a figure and allow them to decide?

Some experienced plaintiff lawyers believe that it is too early to disclose the amount in voir dire because the jury has heard no evidence to support the amount. Others believe that it is better to tell them in order to explore the reaction and discuss it during voir dire. The advantage of disclosure in voir dire is that it allows discussion of the reaction to the amount. In addition, the psychological principle of “priming” is triggered by the disclosure early in the case. Priming in this context, refers to using a number to influence the subconscious mind’s conclusion about numerical conclusions. For example, generally speaking, the larger the suggested number as reasonable, the higher the number arrived at by the other person. Disclosing the number early results in the jurors listening and evaluating with that number in mind.

Disclosure in opening statement of the number you are asking for has a the advantage of the juror’s hearing the evidence outlined that will support the figure. It also has the benefit of priming as well.

Disclosure at the end of the case allows the number to be supported by a full outline of the evidence to justify it as well as arguments in support of the figure.

What is clear is that a figure you recommend as a verdict should always be given to the jury without exception. You should not “leave it up to the jury.” That’s because of the principle of “priming” which includes the fact that our opinions and choices are influenced by suggestions made before expressing our choice or opinion. Suggesting a number to a jury has the greater potential of influencing their decision. In addition, comparisons to the price of objects of value such as museum paintings can influence on the evaluation of the verdict you’re asking because of the same principle.

It is also supported by studies that have been done in sales where showing the most expensive home first to a prospective buyer and then the less expensive homes was compared to the reverse: showing the least expensive homes first and then the most expensive last. Research demonstrated that showing the most expensive homes first influenced the buyers who were more willingness to pay a higher price for a home.

Suggestions of a dollar amount have an influencing effect. Jury research demonstrates that asking for specific amount of money or specific remedy produces better results than simply leaving it to the jury. While that does not mean that the lawyer can ask for any arbitrary amount he or she wishes because it must be based upon some rational analysis, it does mean that you should always ask for a specific verdict.

In the article from the Sturm College of Law, the researchers studied this concept of anchoring. The issue they studied was the effect of the amount of money the plaintiff asked for on the ultimate verdict. In addition they studied the impact of a defendant who either ignored the number plaintiff suggested or suggested an alternative number.

This important article answers the question of  whether  a plaintiff is better off  not  suggesting any number or should avoid asking for “too much” because it will anger the jury.  In summary, the study found that anchoring effects  were extremely powerful. The plaintiff was able to dramatically increase the potential recovery by simply demanding more money. In the study, damages increased an average of 430% by this tactic and also found it had a small affect on winning. Their conclusion was that the plaintiff should always  asking for a damage figure and should request extremely high damages  unless the concern is maximizing the chance of recovery.