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.

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