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The CMG Voice

How Are Focus Groups Used In Medical Malpractice Cases?

Posted Monday, March 19, 2018 by Gene Moen

Most firms that represent injured patients in medical malpractice cases will use focus groups in preparing for trial. A focus group is simply a group of people, who theoretically match what a jury would look like in the case. The focus group participants are selected in various ways, from posting notices in places like the YMCA to putting ads on Craigslist. Most attorneys try to end up with a balanced group in terms of political leanings, age, and gender.

They are then invited to a focus group session that might last from three to five hours, and paid a fee ranging form $75 to $125. Many focus group sessions take place in the evening or on a Saturday, so those who are work during the day are not excluded. Usually, the firm tries to avoid having the participants know which side the firm represents. The group’s size will usually range from six to twelve members.

What is the purpose of a focus group? Someone once said that “lawyers are from Mars and jurors are from Venus.” Lawyers are trained to think a certain way and to assess the facts of their case in a logical fashion. As any trial attorney will tell you, however, jurors do not think like lawyers and are influenced in their decision-making by factors a lawyer might not even know exists in the case. The focus group is a chance for the lawyer to present selected facts about the case and find out how “ordinary” people react. Some lawyers treat it like a “mock jury,” having different people present the case from both the plaintiffs’ and defendant’s perspective, and finding out how the jurors rule on the issues.

More commonly, selected facts about the case are presented to the focus group, and then comments are asked for. Reactions might be put down on paper, and then the facts are discussed and the participants can then change their initial conclusions based on that discussion. In some focus groups, there may be only one or two key issues on which the lawyers want to get input. For example, in a medical negligence case in which there is finger-pointing between a doctor and another medical provider, the lawyers may want to see how this issue is perceived under different scenarios. The discussion by the participants is more important than their “decisions,” because the lawyers are looking for ways to improve their presentation to obtain maximum impact.

There are jury consultants who make their living by flying around the county arranging focus groups in large cases. The costs can be quite high. Others may offer a special focus group facility and assist the lawyer in setting up the session and finding participants. There are many articles about focus groups and how they should be run. Many lawyers, like those in our firm, use a building conference room away from their office so it isn’t clear who is putting on the session, and then use a dedicated cell-phone to talk to, and choose, the participants.

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Getting a second opinion

Posted Thursday, March 15, 2018 by Tyler Goldberg-Hoss

We tend to run focus groups on our cases, inviting folks who approximate possible jurors in a given venue to listen to facts of a real case and give their thoughts and opinions. Of course, I run groups on actual cases, and as such a bad outcome has occurred.

Commonly, some jurors are critical of the choices made by the patient in a given circumstance. For example, one case may involve a patient going to her doctor, and the doctor misdiagnosing her, causing harm. In those situations, I routinely hear things like “I would have gone straight to the ER and demanded a (insert test here that would have picked up the problem)” or “I would have gotten a second opinion”.

This latter sentiment – that I would have gotten a second opinion – is a particularly common sentiment for folks who are faced with a story involving a doctor allegedly making a mistake and causing great harm. It can be easier for folks to think of themselves as fundamentally different from the patient who suffered the harm. This has a name: “attribution bias” or “negative attribution bias”. It is the juror’s own unconscious defense mechanism to feel safer about the world.

Still, I have always been curious as to how often people do ask for and get second opinions. From a 2011 Harvard Publication, about 70% of Americans don’t get a second opinion or do additional research. A 2005 Gallup poll found that about half never seek a second opinion. Whatever the actual number, it appears that more than half of all of us never seek a second opinion.

I count myself among that group, having never asked a doctor for a referral to another doctor to check the first doctor’s work. My guess is the reasons so few of us ask for second opinions are similar: the time involved in getting one, the fear of insulting the first doctor, the worry of getting two different opinions and ending up more confused than before.

Unfortunately, though, second opinions are often helpful in diagnosis and treatment. A recent Mayo Clinic study found that, of those patients who sought a second opinion for a complex condition, nearly 88% went home with either a new or refined diagnosis – changing their care plan and possibly saving their lives.

Certainly, my clients who have suffered tremendous harm due to a medical error would love to go back in time and get that second opinion. For complex issues, perhaps moving forward we would all be better served if we got them.

You can read more about the Mayo study here:

The value of second opinions demonstrated in study

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The number of hospitals is shrinking.

Posted Monday, March 12, 2018 by Tyler Goldberg-Hoss

Recently I read an opinion piece in the New York Times by oncologist and bioethicist Ezekiel “Zeke” Emanuel, M.D., regarding the role of hospitals in our health care system. Dr. Emanuel posited that hospitals are shrinking in number, and that trend is a good thing for patient safety and cost.

It is an interesting read. Dr. Emanuel describes the rise of hospitals in the late 19th century, particularly with the advent of safer surgical technique, the discovery of x-ray technology, and a better understanding of how to reduce the spread of infectious disease. The amount of hospitals and hospitalizations grew until reaching a zenith in 1981.

Since that time, while the population has grown, the number of hospitalizations has decreased. This in part is because much care now does not necessitate hospitalization, such as chemotherapy, joint replacement surgeries, and even births.

And this may be a good thing. Dr. Emanuel points out that in 2002, there were nearly 1.7 million hospital acquired infection causing approximately 100,000 deaths. Further, a hospitalization is better characterized as a “trial to be endured” than “rejuvenating stay at a spa”.

Certainly, hospitals will not like it if this trend continues. In the Pacific Northwest, we have already seen hospitals merge with one another, ostensibly for purposes of saving money. However, as a recent lawsuit filed by Washington’s AG against Catholic Health Initiatives d/b/a Franciscan Health System and other health care entities in Kitsap County shows, such mergers and relationships risk raising consumer prices.

You can read Dr. Emanuel’s full opinion piece here:

Are Hospitals Becoming Obsolete?

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What’s in your IV bag? Should it be?

Posted Friday, March 9, 2018 by Tyler Goldberg-Hoss

Recent studies published by the New England Journal of Medicine conclude that “balanced crystalloids” should replace saline as liquid of choice in IV drips for patients.

If you have spent much time in a hospital setting (or watched a hospital-based TV show), you know what an IV drip is: a bag of liquid solution hanging from a pole, with a line down to the patient to deliver the contents of the bag. IVs are used to increase fluids in a patient who may be becoming dehydrated, or to give a patient nutrients or medicine.

Saline – essentially salt dissolved into water – is routinely used in IVs. However, this new research tells us that saline, and particularly the salt in it, is causing a lot of kidney damage. So much, that the researchers estimate switching from saline to balanced crystalloids could save 50,000-70,000 lives and prevent 100,000 cases of kidney failure in the US each year.

The studies involved patients at Vanderbilt, and after the results were known, Vanderbilt itself decided to switch to primarily using balanced crystalloids in their IV bags. Countries in Europe and Australia have already made the switch.

For further reading, an abstract of the results of the studies can be found here:

Balanced Crystalloids versus Saline in Critically Ill Adults

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Should the US consider an “opt out” system for organ donation?

Posted Monday, March 5, 2018 by Tyler Goldberg-Hoss

Typically in the United States, the idea of organ donation occurs at some point when you interact with your state’s Department of Licensing. If you agree (opt in) to organ donation, you have a little red heart on your driver’s license.

Unfortunately, there appears to be a long-standing problem of too few organ donations for the people who need them. Recently, one count estimated the number of people in the US waiting for organ transplants at over 115,000. Regularly, such people waiting for a life saving transplant die before getting one.

Although some folks have argued for allowing for the buying and selling of organs, it is expressly against the law in the US – you can get 5 years in jail for doing so. So without a market place for organ procurement, and without enough donors to meet supply (and with the number of available donors likely to shrink in the coming decades after driverless car technology is perfected, and there are far fewer vehicular fatalities to produce viable organ donations), some countries have decided to change “opt in” systems to “opt out” systems.

Simply put, with “opt in” systems the default is that you are not an organ donor – you must affirmatively decide to be a donor. But with “opt out” systems, the default is you are an organ donor, and you must affirmatively opt out.

Currently there are over two dozen European countries with some form of an “opt out” system. Recently a couple of states introduced such legislation, but neither became law.

The system – particularly in a country such as the United States which very much values a person’s autonomy and freedom (“Don’t Tread On Me”) – many can be persuaded by the argument that an “opt out” system is allowing the government too much control over a person’s body.

But in the context of so many people dying waiting for transplants, perhaps it is time to consider a new strategy.

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