By Karen Lisko
Excerpted from Proven Jury Arguments and Evidence
The unique complexity of medical malpractice litigation rests with the reality that jurors often begin a trial torn over sympathy toward both sides. Unlike impersonal defendant-corporations, defendant-doctors can be sympathetic characters because of the personal respect jurors commonly afford the profession. At the same time, jurors can relate to the plaintiff as patient.
Jurors share in common many truths in this type of litigation, irrespective of venue. These truths have been borne out through post-trial interviews with actual jurors from medical malpractice litigation, in privately funded mock trial research, and through a review of the academic literature. (Medical malpractice litigation is one of the most heavily researched areas of civil practice.)
Juror Truth One:Despite popular press allegations to the contrary, social science research concerning medical malpractice litigation finds that anti-plaintiff biases can actually surpass anti-defendant biases.1 Says jury researcher Neil Vidmar: “[M]alpractice plaintiffs may often bear an extra burden of proof. Juries will sometimes decide in favor of plaintiffs; but if the evidence is very close, defendants may get the benefit of doubt.”
Juror Truth Two:Jurors’ (1) views about doctors’ authoritativeness, and (2) practices in their own personal medical care can greatly affect how they see the physician in medical malpractice litigation. Our private research has found that jurors who place great weight in the authority of their primary care physician and who see little need to get a second opinion on medical diagnoses are “paternalistic” jurors. They tend to be defense-oriented. “Consumeristic” jurors tend to switch primary care physicians more frequently and comfortably seek second and even third opinions. These jurors tend to be pro-plaintiff.
Juror Truth Three: Jurors frequently cast a cynical eye toward medical experts testifying on either side of the case if they have an entrenched pattern of testifying. Jurors can be especially cynical toward a paid expert if that expert has testified primarily for one side in medical malpractice litigation. If the proof in your case relies heavily on your expert(s), probe jurors’ attitudes towards expert witnesses carefully during voir dire.
Juror Truth Four: Jurors place great weight on the better teachers in medical malpractice litigation. Much of the medical terminology in malpractice litigation is foreign to the average juror. The attorneys and witnesses who do the better job simplifying terminology and teaching concepts start in a stronger, more credible position. Jurors are rarely impressed by the litigator or witness who uses complex medical terminology to the exclusion of simplified terms.
Juror Truth Five:When a contradiction between the two exists, jurors tend to find more credible on-the-scene chart notes as compared to deposition or trial testimony from the medical professional. Most jurors believe the memorialization of events recorded closer in time to the incident(s) in question is more reliable than after-the-fact testimony, especially since that testimony post-dates the filing of the lawsuit.
Juror Truth Six:Jurors often evaluate doctor-defendants’ treatment according to the way they would want to be treated as a patient themselves. A doctor’s “bedside manner” in court serves as an important benchmark for jurors as they attempt to retroactively evaluate the care with which the patient’s treatment was handled.
Juror Truth Seven:Medical malpractice juries often award less in damages than do arbitrators or judges. Contrary to the assumption that jurors award damages in an “out of control” fashion, social science research has found that juries award less in damages than do other factfinders a significant amount of the time, and certainly award no more in damages than other factfinders much of the rest of the time.2 In fact, anecdotal accounts confirm that some health maintenance organizations have dropped their mandatory arbitration clauses because their own independent research has confirmed the same finding that arbitrators’ damages awards are often higher.3
Juror Truth Eight:Jurors make sense of what they believe happened in a case by finding a coherent story to make sense of the evidence they find to be most important.4 If you do not provide enough of a coherent or compelling story, jurors will create one for you (or for your opponent, depending on which evidence they attach themselves to). Certain jurors will use deliberations as a forum for “reenacting” the story of what happened, often by comparing it to their own similar medical experiences.
Juror Truth Nine:Jurors typically rely first on their own “local expertise” before turning to the paid experts’ interpretations. The jury is comprised of patients with varying levels of experience in those roles. In addition, many jurors “armchair-diagnose” their friends and family on a variety of ailments. They then tend to match the fact witnesses’ and experts’ conclusions to their own.
Juror Truth Ten: Juries today hold the plaintiff more accountable for using her power and choices in taking care of herself. While jurors in years past may not have considered the options patients have to seek out second and third opinions from specialists, now such an expectation is common.
Juror Truth Eleven:Certain jurors apply 20/20 hindsight to both parties. Knowing what we know now about the patient’s outcome, what should the parties have done differently? Typically, doctor-defendants suffer from jurors’ application of this type of bias because jurors become educated with enough science to find the missed diagnosis or treatment to be obvious in hindsight. Conversely, medical malpractice plaintiffs can suffer that same scrutiny for not having taken a different, more proactive course of action.
Juror Truth Twelve:Some jurors use counterfactual reasoning5 to determine whether the medical practitioner’s treatment makes sense in retrospect. Counterfactual reasoning involves contemplating a different outcome based on a different chain of events. In other words, how might the patient have fared if he had sought medical advice sooner? Would the patient still be alive if her physician had ordered an obscure test that revealed the rare disorder with which she was ultimately diagnosed? While jurors often initiate this type of thinking on their own, raising it as a rhetorical question for them during opening or closing can be highly effective in planting the seeds of thought that you want to germinate.
Juror Truth Thirteen:Jurors are keenly interested in third-party accounts of the alleged malpractice event, given the self-serving motives of the patient and doctor. Others on the medical staff can be viewed as credible memories of what occurred in a medical procedure gone wrong. Even if the staffer has only partial knowledge of the events, jurors often see inconsistencies between the staffer’s testimony and the doctor-defendant’s position as proof that the doctor is reinventing history. Plus, irrespective of litigation type, eyewitness testimony is typically quite powerful with jurors.6 Many jurors are prone to finding eyewitness testimony to be more accurate than it actually is (even when evidence exists to undermine that accuracy).7 That propensity to place great weight on eyewitness accounts largely stems from two factors jurors have relayed to us in post-verdict interviews. First, jurors are hungry to hear an account of the event from a neutral party—much like a tie-breaker. Second, they want to be able to merge a contemporaneous account with an after-the-fact reconstruction.
Juror Truth Fourteen:Jurors rely heavily on graphics to make sense of what occurred. Most jurors learn visually.8 Unlike other types of cases where their own imagination can provide ample (or better) detail regarding the case events, most jurors need to understand a medical event from a chart or animation. That said, clarity can be a great ally or a great enemy to one side or the other in a given case. An attorney’s or witness’ verbal description of the medical problem can greatly affect jurors’ understanding of the case. It is often better to control the salience of the point by combining the visual with the verbal. Counsel should take great care in understanding how clarity or the lack thereof affects her case before proceeding to trial.
Once jurors start learning about the specific case, they tend to have repetitive questions that are critical for counsel to answer if at all possible. Of course, in many instances, the answers to those questions are inadmissible. Despite that fact, if these questions never get satisfactorily answered during trial, jurors have been known to send the question to the judge for clarification during deliberations and/or to fill in the gaps on their own—even if the issue was ruled inadmissible.
Jury Question: How aggressive was the patient in seeking a resolution to her medical problem?
Jury Question: To supplement the initial opinion about her medical condition, how many additional opinions did
Jury Question: What, if anything, did the plaintiff do to aggravate her medical condition?
Jury Question: What were the plaintiff’s preexisting medical conditions, and how diligent was she in her own
medical care prior to the problem?
Jury Question: What steps has the plaintiff taken to mitigate her ailments?
Jury Question: How reliant are others on the plaintiff to help care for them?
Jury Question: What limitations does the plaintiff have that she did not have before?
Jury Question: What is the plaintiff’s physical condition like now, compared to what it might have been if not for
the alleged malpractice?
Jury Question: Will insurance cover any of the damages?9
Jury Question: How detailed were the chart notes taken by medical staff about this patient?
Jury Question: Did any third parties who were disinterested in the outcome of this case witness anything that
would help jurors more objectively assess fault in the case?
Jury Question: What is the doctor’s “bedside manner” like?
Jury Question: Is the doctor board certified?
Jury Question: Has the doctor been accused of similar infractions in the past?
Jury Question: Would I want to send my loved one to this doctor-defendant?
Karen Lisko, Ph.D., has over two decades of practical experience in hundreds of cases across the country in the areas of civil plaintiff, civil defense, and criminal defense ranging from simple to complex litigation. She provides expertise in courtroom persuasion, strategic jury selection, case theme development, persuasive opening statements, and closing arguments, and assists with witness preparation for deposition, arbitration, and trial. She has trained many attorneys, both individually and in groups.
Dr. Lisko utilizes her training to conduct focus group and mock trial research for arbitration, bench, and jury trials. She relies on her experience with hundreds of actual and mock juries as well as with mock judge panels to develop case strategy recommendations based on the research findings. Dr. Lisko has provided expert witness testimony on jury bias, jury decision-making, and community attitude survey research for change of venue. She holds a doctorate in legal communication, a specialized degree held by only a few consultants in the nation.
Dr. Lisko is the former president of the American Society of Trial Consultants (ASTC), and she is a lecturer in the Trial Consulting Certificate Program at Towson Universityin Towson, Maryland. She is also a member of the Board of the ASTC Foundation, and a member of the American Bar Association, Section of Intellectual Property Law. In addition, she has published several articles and has spoken to numerous groups regarding courtroom persuasion and jury decision-making.