There is a pattern in medical malpractice litigation: people want to trust their doctors. This pattern is something observed in our own experience, in human psychology, and in attitudes toward malpractice trials. Plaintiffs only win when jurors are able to overcome that trust. The best thing that doctor-defendants have in their corner is jurors’ strong pull toward trusting the doctor. Job number one in a medical malpractice defense is to avoid any behavior that could lead fact-finders to abandon that trust.
At the end of the first day of a trial involving two doctors charged with negligence in their medical decisions and care, a group of citizens watching and neutrally evaluating the case made comments like the following:
They were doing their best to help in a difficult situation.
It is a two-way street and patients need to make good decisions too.
It sounds like it was a reasonable judgment call.
We all need to trust our doctors.
Of course, these weren't the actual jurors. They were "shadow jurors" that we brought in to sit anonymously in the gallery, without knowledge of which party had hired them, and provide us with feedback during the trial. And the comments that reflected their initial leanings in this case were consistent with a pattern that we see in similar lawsuits: People want to trust their doctors. A Gallup survey conducted in December of 2010 showed that around seven out of every ten respondents report such confidence in a doctor's advice that they don't feel the need for a second opinion. And that number goes up as you get older (from 65 percent for those at mid-life to 85 percent for those at retirement age and older). Psychologically, there is a strong explanation for that confidence, and some clear implications for how it should translate into better strategy in a medical malpractice defense.
Why would people want to trust their doctors? Simply, people depend on doctors, and depend all the more as they get older. That personal vulnerability combined with a tendency to avoid cognitive dissonance means that we have a clear psychological tendency to believe that when we place ourselves in the hands of doctors, they are going to do their best to help and not hurt us.
Then what about all of those out of control juries who are levying multi-million dollar awards against doctors based on simple bad outcomes? Based on the research, that is far more of a popular stereotype than an observed fact. Dr. Neil Vidmar (2009) looked at the data on these and other beliefs about medical malpractice litigation, and the conclusions are much more favorable to doctors than you might expect. For example, only one in 25 patients with negligent or preventable medical outcomes end up bringing a lawsuit, because patients are generally reluctant to sue their doctors. Of those suits that are filed, only about seven percent end up in front of a jury. Plaintiffs win only about 27 percent of that portion, and the median awards are below $500,000. Contrary to what might be our image, jurors are not focused on sympathy for the plaintiffs or the presumed "deep pockets" of defendants. Instead, Vidmar reports on research involving jurors who served on North Carolina medical malpractice trials, finding two main themes in jurors' reactions: too many people are trying to get something for nothing, and doctors who are trying to help, can't be expected to be perfect.
At the conclusion of our trial discussed at the start of this post, the actual jurors returned a straight defense verdict, and then said most of the same things reported by the shadow jurors: While they had sympathy for an injured patient, they felt that the doctors did their job and made a reasonable judgment call without the benefit of 20/20 hindsight.
All of this notwithstanding, some doctors do still lose, even on cases they should have won. When that happens, it is because the Plaintiff has overcome that basic trust in doctors, and too often that is with the doctor's unintended assistance. In deposition or in trial, we've found that are several ways that a perceived attitude on the part of the doctors can occasionally lead jurors to set aside their trust. A doctor helps the plaintiff by coming across as:
- Arrogant: Suggesting an attitude of “you have no right to judge me” directed against opposing counsel or experts, but ultimately received by a jury.
- Evasive: Taking their lawyer's advice of being circumspect and literal, they instead suggest that they don’t want to answer the attorney's, and ultimately the jury's, questions.
- Aloof: Distancing themselves from the details of the case and the facts, they convey that they don't really care about the litigation, and by extension, may not care very much about their patients.
- Uncertain: Based on the limits of memory or their own involvement, they convey that they don't know much about the case, leaving jurors with the plaintiff's much more certain recollections.
- Doubtful: A natural tendency toward perfectionism turns into self-doubt over a bad outcome, and jurors pick up on the fact that the doctor is wondering, “Did I do the right thing?”.
To be clear, I'm not saying doctors who are involved in litigation tend to be any of those things. Instead, the explanation is that the doctor, courtesy of the litigation process itself, is under a tremendous amount of stress, and that stress can manifest itself in unproductive communication behaviors: anger, doubt, or avoidance. Those reactions are understandable (it is no picnic to be sued), but ultimately can be dangerous. The best thing that doctor-defendants have in their corner is jurors' strong pull toward trusting the doctor. And that isn't just a psychological quirk, but a level of respect that has been earned both by doctors as individuals and by the medical profession itself. Job number one in a medical malpractice defense is to avoid any behavior that could lead fact-finders to abandon that trust.
- Understand Juror Bias, But Bet On The Evidence
- Remember That Your Juror is a Consumer First
- Make Sure Jurors Understand That You "Get It"
Vidmar N (2009). Juries and medical malpractice claims: empirical facts versus myths. Clinical orthopaedics and related research, 467(2), 367-75 PMID: 19002541