Every lawyer who tries medical malpractice cases knows this fact: if at all possible, the jury will try to blame the victim. It is a phenomenon that has been discussed by many attorneys, and the explanation is that this is a form of psychological “self-protection” for a juror. No one wants to think that seeing a doctor or going to the hospital exposes them to bad outcomes, such as those that are the basis for a malpractice lawsuit. They want to feel safe in seeking medical care. So when a plaintiff claims that a doctor harmed them, the jury wants to deflect that risk by coming up with a reason why it was the patient’s fault. They want to feel that “this would not have happened to me, because I would have been more careful.”
A common form of blame: “The patient should have obtained a second opinion.” Focus group participants, and jurors, often assert that they would always seek a second opinion if their doctor recommends a major medical procedure. Yet the reality is that very few people actually seek second opinions because most of them trust the doctor they are seeing.
Another form of fault-attribution: “If the patient had taken care of himself or herself, the bad outcome would not have occurred.” This means that patients who delay seeing a doctor, or who are over-weight, or who smoke, are almost automatically blamed for bad outcomes, even when experts on both sides agree that these were not factors in what happened. When medical records are admitted into evidence, some jurors pour over them looking for anything that indicates patient fault or negligence. For example, in a case involving delay in treating a cardiac condition, the jurors may look to their own experience or knowledge to decide that the patient had a bad diet or did not exercise enough, and that means the patient brought this on himself.
Sometimes the fault attribution becomes almost absurd. In a case involving post-surgical problems leading to death after a cardiac valve replacement, the focus group was given photos of the decedent showing how active he was before his death in order to show how the death resulted only from the post-op care. Some of the focus group participants concluded that he was too physically active for a man his age, and that this was likely the reason why he needed valve replacement surgery in the first place. The bad outcome could thus have been avoided by the patient if he had only taken it easy.
I recall one focus group for a young woman who had developed intractable pain after an injection was negligently given and damaged a nerve. The evidence was that she had sought treatment from a neurologist, a physical rehab physician, an anesthesiologist/pain clinician, and a pain psychologist. One of the focus group members then said “but she hasn’t gone to an acupuncturist, and I would have done that.” The consensus quickly developed that she had not fully mitigated her damages because she didn’t seek care from an acupuncturist. The focus group then deducted 25% from the damage figure they otherwise thought was appropriate.
