The changing climate for defending medical malpractice cases at trial
By Daniel J. Huff, Huff, Powell & Bailey, LLC
Medical defendants enjoyed a successful run in trials following the aftermath of the General Assembly’s tort reform in 2005. Medical defendants prevailed in more than 90 percent of the cases that were tried between 2005 and 2016. Since 2016, this winning percentage has gone down. At the same time, awards in medical malpractice cases have increased. Higher awards are also being seen in non-medical catastrophic injury trials as well. Combined with this trend is the fact that there are now verdicts in traditionally defense-oriented counties in Georgia. These counties were not known for plaintiffs’ verdicts at all, let alone large verdicts against medical providers. These realities have made it more difficult for medical defendants to confidently try their cases in Georgia.
There are some identifiable reasons for this climate change. First, the Georgia jury pools are now based on having a driver’s license and not being registered to vote. This has widened the group of citizens who are called for jury service. It is hard not to associate the change in the composition of jury pools with a trend in favor of plaintiffs’ verdicts. There is a plethora of anecdotal evidence from experienced lawyers that juries in different counties are not what they used to be.
A second reason is how people receive information. The concept that people have short attention spans has been a hallmark of trial practice for many years. Getting to the point has been a long-standing priority. Now, most people get all of their information electronically. Many of the questions we ask are answered using an electronic device. People are not used to getting the whole story or context in the information that they receive. We have developed an appetite for the quick answer. Anyone with a phone can answer any question in seconds. This is especially true with respect to medical information. Nowadays, everyone uses Google or WebMD to look up any medical disease, diagnosis or symptom. Naturally, these websites warn users of the most serious symptoms, problems and diagnoses. The availability of this information alone, in this format, places a greater emphasis on bad outcomes than what is practiced by medical providers. More on dealing with this reality later.
Another generalization about jurors today is that they are less trusting of traditional institutions. This includes police departments, district attorneys and the court system. One of the most popular shows in 2017 was Netflix’s documentary Making a Murderer. Young people who watched that show were more appalled by the conduct of the police, district attorney and the courts than of the defendant himself. In real life, jurors who heard all the evidence in that case found the defendant guilty. The majority of the people who watched the show believed it was a set up. My perception is that jurors are much more willing to believe that people and institutions with reputations or money will lie and cover up their wrongdoing.
Finally, there is the concept of the “greater good.” The greater good is touted as a millennial core value. Millennial jurors want to feel like they are doing things that help the greater good. Plaintiffs’ attorneys frequently try to make their case about the greater good by portraying justice in an individual case as part of that millennial value. I personally think this is a big factor with millennial jurors and impacts trials in unexpected ways. We can do better in finding ways to capitalize on this value ourselves.
Whether this is an exhaustive list of why the medical malpractice trial climate has changed or not, it has definitely changed. More cases are being filed and venture capitalists are investing in plaintiffs’ cases. It has not helped that medical errors are periodically reported as a top cause of death in the United States.
In light of the current climate, we should consider pivoting our approach to defending medical cases. This is necessary in some individual cases and may be necessary in all cases to some degree. Every traditional trial concept for medical malpractice cases should be rethought in light of today’s climate. Here are some of my thoughts about ways to improve how we try medical cases in this new climate.
Reconsider your jury selection questioning of potential jurors. I do not think it is sufficient to simply plant defense seeds in the juror’s minds during jury selection. There are people on your jury pool who seem safe, but in today’s climate, may or may not be. You will miss some very biased jurors by not asking the most difficult questions about your case. Ask potential jurors about the concerns you have about your case that keep you up at night. For example, “Does anyone think that a doctor should talk to a patient about a C-section if there is any sign that the baby is in distress?” In a recent patent trial, a federal judge asked jurors the following two questions: “Who believes there is extraterrestrial life?” and “Who believes that extraterrestrials have come to earth?” Jurors raised their hands to these questions and were identified as individuals who were skeptical of both science and institutions. Only one was struck for cause, but this was valuable information to all parties. Ask questions about concepts you hope jurors do not believe. For example: “Who thinks Doctors downplay risks to get patients to agree to have surgery?” and “Does anyone have concerns about the reasons why Doctors prescribe medications?”
With respect to the defendant doctor, traditionally a physician who had military experience was considered someone with impeccable background. Likewise, a physician who had foreign medical training was handicapped at trial. I do not believe either of these dogmas are true anymore. Younger jurors do not revere military service as much as older jurors and younger jurors are much more forgiving of foreign medical education and training. The same is true for experts. A traditional concept that I think is fraught with peril is the local defense expert. Traditionally, a local defense expert supporting another doctor in the community favored the defense. I no longer think this is the case. Modern jurors are skeptical that local experts are helping out other doctors and hospitals in the community, even if they are competitors. Less charismatic and experienced experts who come from well-known institutions are often perceived as better experts than the local expert, even when the local expert is demonstrably more competent.
Back to the greater good. Certainly, helping a catastrophically injured plaintiff can be seen as doing something for the greater good. This is the justice most plaintiffs’ attorneys speak of in trial. Competing against this concept doesn’t work. It’s an uphill battle to argue that a defense verdict serves the greater good in an individual case. Nevertheless, defendants can embrace the greater good. The greater good is served by having hospitals and doctors available to everyone to provide responsible care and appropriate treatment for all people in the community. In this respect, the greater good is achieved by not over-testing a patient. The greater good is achieved by putting patient care over documentation. The greater good is also achieved by listening to patients and sharing information among the care providers. Developing policies and procedures for patient care furthers the greater good. The list goes on, but there are a number of examples we can use to show that our clients are in service of the greater good as well.
Another aspect of devotion to the greater good is to show that our clients contribute to the medical literature, participate in studies and trials to improve patient care and volunteer time and resources to medical causes.
One unexpected outcome of millennials’ belief in the greater good is its impact on the plaintiff’s counsel and witnesses. This is subtle. Traditionally, there was an expectation among defense counsel that jurors understood that the plaintiffs’ attorneys had the case on a contingency fee, that plaintiffs’ experts were paid money to come and testify in court from out of state, and that a plaintiff’s life care planner was a ready-made vehicle for litigation. The perception was that these folks were motivated by money. With some millennial jurors, these individuals are seen in service of the greater good. A plaintiff’s attorney who takes a case on a contingency basis is serving the greater good along with a plaintiff’s expert. The medical expert who testifies the vast majority of their time for the plaintiff can be portrayed as someone who is fighting against the “white coat conspiracy” that protects its own. The expert can be seen by some jurors as one person fighting for what is right against a profession that completely protects its own. This inaccurate approach can be extended to legitimate medical organizations like ACOG as well. At times, plaintiffs’ attorneys and their experts suggest that ACOG was created to protect obstetrical defendants in litigation. It has also been referred to as a “trade association” bent on tort reform. Of course, none of this is true and is easily disproven. Nevertheless, there are some jurors who are very susceptible to these arguments and want to believe them.
The same can be said of life care planners. As defense lawyers, we have a dim view of the life care plan created in litigation. We do everything we can to discredit the life care planning process and its purpose to inflate damages in personal injury lawsuits. We should always consider how well a young jury will receive a life are plan and whether some jurors will consider a life care plan and the people who create them part of the greater good.
Another traditional concept that needs to be reevaluated is how we deal with textbooks and other medical literature at trial. Simply disagreeing that a textbook or article is authoritative paints a negative picture in today’s climate. A defendant who does not consider reputable sources as authoritative is subject to being considered selfish, self-centered and potentially dangerous. The impression is that the defendant considers his own opinion to be superior to the opinion of the community. Context is the key. Textbooks and articles are important and valuable. They are resources for medical information and are generally authoritative about the information they contain. However, no textbook, article or other piece of medical literature is authoritative about how to take care of individual patients. This commonsense context will serve our clients better than the traditional “no authority” approach.
A defendant’s bias is not a new concept at all, but it deserves more attention in the current climate. It is problematic for the defense if a bias regarding an individual is used to explain a defendant’s decision. Jurors believe that all patients should be cared for in an unbiased fashion and not short‑changed because of a defendant’s bias. Bias can also happen in very subtle ways. It can be a bias in favor of someone because they have medical training or someone in their family has medical training. This can be a reason why detailed instructions were not given because the plaintiff knew more than the average patient. Facts like this, must be taken in context and are very individualized to a particular case. Examine your cases closely for any decision‑making based on any potential bias with the mindset that today’s jurors believe patients should all be taken care of the same way, regardless of their individual qualities.
This article is incomplete. It does not talk about documentation, electronic medical records, audit trails, witness preparation, technology at trial, combatting and using reptile techniques or whether and when to attack the plaintiff. All of these topics are subsets of some the information explained above and I welcome discussion by members of GDLA about the climate and our challenges.
This article originally appeared in the Summer 2019 edition of ‘Georgia Defense Lawyer’ magazine. Huff is a founding partner in the law firm of Huff, Powell & Bailey, LLC. He represents physicians, hospitals and other health care professionals throughout Georgia in professional negligence lawsuits. Huff is a regular contributor to the ‘Journal of the Medical Association of Georgia.’ Contact Huff at firstname.lastname@example.org or 404.892.4022.