Anyone assessing the value of a medical malpractice claim – including both plaintiff and defense lawyers, insurance adjusters, and to a lesser extent the plaintiff and defendant themselves – should keep in mind the end game is almost always a jury trial.
Although my take about a particular case may align with how regular people view it, sometimes it doesn’t. That can be dangerous to a plaintiff lawyer, who can spend tens of thousands of dollars and a huge amount of time on a case he thinks has merit, only to find that the people who really matter – those 12 jurors – think differently.
Focus groups, as I have previously written about, can be a good test of whether my views are consistent with regular folks. They can also bring to light some prejudices that, right or wrong, exist in our society. We all carry them around, and if I’ve done my job right, focus group participants feel comfortable sharing those prejudices with me. And hearing them from focus group participants at an early stage of the case can save me from going forward with a case that is almost certainly doomed to failure.
Most of these prejudices can be generalized as the patient victim not taking good care of him or herself, and therefore is to blame, fairly or not, for what has happened. This can include smoking, drinking, diabetes, use of pain medication, use of drugs (including now legal marijuana), obesity, hypertension, and high cholesterol, to name a few.
Jurors tend to hold the plaintiff to a high standard with regard to these issues. If you are going to come into court with your hand out, asking for the defendant doctor to pay you a bunch of money, you will be scrutinized.
Recently I ran a focus group to test such an issue in a case. We already had expert support for the case: the provider was negligent, and as a result this person died. But there was a possible issue involving the decedent’s health. While it likely did not contribute to his death, I had a hunch it was going to be an issue with the group.
So I tested it, and I unfortunately learned that I was right. Aside from two jurors, the rest of them could not get past one fact. I listened while they each read the fact pattern. I could tell when some of them got to the issue. Some quietly gasped. Another said “ohhhhhh.” Others scribbled notes.
And when we discussed their thoughts about the case, the majority could not get past that one issue saying things like “She brought this on herself” and “Even if she didn’t die this time, she probably only had 2-3 more years.”
After the focus group, we decided to not go forward with the case.
It is hard, sometimes, to turn down a case in large part because of one of these issues. It doesn’t feel particularly fair, that one issue can be a deal breaker, one issue can be so loud as to drown out any other discussion on the subject, including the doctor’s bad actions. But it would be harder to bury my head in the sand, hope that the issue won’t torpedo the case, and find myself staring at a judge reading a defense verdict after pouring time, energy and money into a case.
