3 Unexpected Considerations in Medical Malpractice Litigation
Unquestionably, medical malpractice litigation can be a painful situation for all involved. For doctors, nurses, and healthcare professionals, significant economic issues surround the value of any individual case, making medical malpractice lawsuits a significant concern. Although some jurisdictions have caps limiting the amount of damages that can be awarded in medical malpractice suits, others do not, and damages can easily reach several millions of dollars.
The professionals at Courtroom Sciences understand the inherent challenges of medical malpractice litigation, as well as the financial risks of a nuclear settlement or verdict, and can help you mitigate risk and experience superior outcomes through proven research and expert support.
How should attorneys prepare for medical malpractice cases?
Key steps for medical malpractice preparation include teaching the legal definition of standard of care, establishing trust, and avoiding last-minute preparation. In addition, due to how healthcare professionals are hardwired to think, listen, and communicate, they often require a different approach than the preparation of other witnesses.
Consideration #1: Jurors are Often Less Forgiving to Defendants With Stellar Reputations
Healthcare professionals at prestigious facilities may mistakenly think that their reputation will help them during a medical malpractice lawsuit. However, the case is often the opposite; more is expected from them. Exceptional hospitals, specialty hospitals, and children’s hospitals, which the public considers top-notch, are also facilities where the public expects things to be done at the highest level. More often than not, jurors will be harsher and less forgiving of facilities they view as top-tier.
The outstanding reputation of the facility, or the health care professional, may add some validity to the plaintiff's allegations in the jurors' minds. When jurors don’t expect negative results from such a well-respected facility, they may inaccurately perceive that a significant mistake was made to lead to such an outcome. This bias is often counterintuitive, as most people would likely believe that their reputation would help them. This kind of unexpected consideration can be challenging for defense attorneys.
Consideration #2: The Risk of Not Offering Damage Numbers
While it’s true that you only get damages if opposing counsel has proved negligence and causation, you certainly don’t want to wait until this point to offer damage numbers. In many medical malpractice suits, defense attorneys may deal with invisible injuries, such as traumatic brain injury cases, where the injuries may be subjective, such as personality changes. There can be such varying interpretations in these cases that it can be hard to pinpoint an exact amount of damages, not to mention that the damages are often intangible.
It becomes even more important in these cases to offer jurors a reasonable amount to prevent them from simply accepting the damage numbers from the plaintiff as a reasonable amount. This needs to be crafted and presented the right way. It may include bringing in experts who have experience with these types of injuries and can take away some fear of the unknown from the jurors and help them make a decision based on evidence.
The reality is that many jurors want to award damages to the plaintiff in a medical malpractice suit, and mock trials have shown where jurors will skip right to damages and then work backward to rationalize their choices. Although this goes directly against juror instructions, jurors may often feel compelled to care for the plaintiff. Therefore, proposing a number that feels as though you will care for that person is usually a wise strategic choice.
There may be a general notion amongst defense lawyers that if they talk about damages, the jury will take that as a tacit concession that the defendant might have done something wrong and is admitting liability or negligence. However, our extensive experience has shown that jurors will not automatically think you are conceding in any way if you simply go ahead and argue damages.
Consideration #3: The Need to Help Jurors Understand the Medical Terminology
Jurors are often bombarded with expert testimony, medical jargon, and new vocabulary in a medical malpractice case. For the most part, jurors do not understand all the different complex aspects being discussed. Therefore, it becomes the defense attorney's task to help educate them while ensuring they are not simultaneously patronizing the jurors.
Juries often consist of a wide range of individuals, from those who didn’t graduate high school to jurors with advanced degrees, perhaps even medical professionals who are inherently more familiar with the industry. Defense attorneys need to find a way to address each of the jurors simultaneously, helping them all to understand the medical complexities of the case. While simply giving a vocabulary lesson is not likely to be an exciting narrative or hold the juror's attention, defense attorneys can educate jurors through various tools, including demonstratives, exhibits, and experts. Experts that can engage with the jury and be the teacher versus the lecturer are likely to be especially effective.
Most healthcare professionals care about their patients, and they want to come into the deposition or trial and deliver thoughtful and accurate testimony. As part of the legal team, Courtroom Sciences’ can help defense attorneys by providing expert resources such as witness effectiveness training and jury research that lead to predictive results and superior litigation outcomes.
Speak with one of our experts to get started.
● Jurors may often be less forgiving of those medical facilities they view as top-notch.
● Many jurors want to award damages in a medical malpractice suit, so proposing a reasonable damages number becomes a wise strategic choice.
● Jurors often do not understand the medical jargon in malpractice litigation, and defense attorneys must educate them through demonstratives, exhibits, and experts.
● Courtroom Sciences can help defense attorneys by providing expert resources that lead to predictive results and superior litigation outcomes.
Counter-Anchoring Damages is More Important than Ever