For many reasons, including tort reform, it is becoming increasingly difficult for plaintiffs to win big in medical malpractice suits. In fact, roughly 75-85% of medical malpractice cases that go to trial result in defense verdicts. This result, as we have seen, may stem from the fact that plaintiff attorneys, who at one time filed dozens of med mal cases per year, are now filing far fewer. Moreover, the cases that are being filed are more likely to be high-exposure cases in venues where caps on medical malpractice damages are not in effect and/or cases that include hospital defendants. When exposure is high, the stakes are high, and the ambiguity surrounding how jurors will respond to the case increases. This article discusses some “lessons learned” in medical malpractice cases from our jury research at Litigation Insights, and the importance of utilizing case-specific jury research to continue to foster positive outcomes for the med mal defendant.
One Reason Why Medical Malpractice Cases End in Pro-Defense Verdicts
How can we explain the statistic that roughly 80% of recent medical malpractice cases have ended in pro-defense verdicts? From a jury psychology perspective, one reason for this may be a trend toward the “psychology of denial.” That is, a juror creates a projection of himself in the position of the plaintiff, but denies his vulnerability and that of medical professionals (a “this cannot happen to me” attitude). Jurors tend to see these lawsuits as one-off, anomalous events that do not provoke the fear needed to enact the “reptilian brain.”
Additionally, there is an increase in general perceptions and projections of patient responsibility and an increased need to trust and support doctors. Doctors are generally perceived as “healers” with good intentions, not as greedy individuals looking to make a quick buck (in the way corporations are often viewed). Although we have seen an increase in pro-defense verdicts, it is important not to discount the roughly 20% of cases that represent a defense loss, those cases in which jurors’ desire to punish overrode their sense of denial. And, more importantly, how can we identify jurors during voir dire who will tend to favor a plaintiff and not be receptive to our arguments in order to strike that juror from the panel?
What Are the Critical Pro-Plaintiff Attitudes in Jury Selection?
Despite our best efforts, some jurors are simply unable to hear what we have to say because their personal beliefs are so strongly held. That is one reason why research to identify the attitudes and beliefs common to the strong pro-plaintiff jurors, often those who award the greatest amount of punitive damages, is so important. Juror distinguishers, based upon quantitative analysis of the research data, provide a critical foundation for jury deselection. Distinguishers that have been shown to be consistently problematic for many medical malpractice defendants include people who:
- Have personal experience with litigation.
- Have had negative experiences with personal or family healthcare.
- Agree that medical malpractice lawsuits are the best way to ensure that doctors do not neglect patients.
- Think it is unfair that a sick/injured plaintiff has the burden of proof against a doctor or hospital.
- Hold entitlement attitudes or have extremely high expectations for the extent to which corporations and the government are obligated to take care of others (e.g., believe the government should provide free healthcare to all citizens).
- Believe that more government regulation of doctors and hospitals is needed.
- Think the most important thing to learn in trial is how much a plaintiff “needs” the money, versus how much a plaintiff “deserves” the money.
- Assume that a person bears little or no responsibility for their own health.
It is important to note that people possessing a combination of these characteristics tend to be our most dangerous jurors; a juror who has only one of these characteristics will probably not be as dangerous as a juror with multiple negative experiences. This brings us to our final point: the importance of obtaining permission from the judge (and opposing counsel) for a written questionnaire (aka supplemental juror questionnaire SJQ). The more information you can glean about panel members’ attitudes, opinions and life experiences before or during jury selection, the better prepared you will be to choose a favorable jury.
Our analysis of juror characteristics, including the one outlined above, can identify a profile for jury de-selection. Using our database on Medical Malpractice and other genres of litigation (e.g., employment, breach of contract, patent, product liability, etc.), we can help counsel develop a juror profile for your case.
By: Jessica Baer, M.A. – Consultant
 Lee, C. and LaFountain, Robert. (2011) Medical Malpractice Litigation in State Courts. Court Statistics Project, National Center for State Courts, 4.