Addressing the challenges of healthcare litigation

Benefits of litigation psychology for the healthcare field

CSI - Courtroom Sciences Inc.

It's no secret that the healthcare industry has a high volume of litigation. So, what can healthcare companies and healthcare insurers do to better prepare to defend themselves in their litigation? Our multi-part series on the healthcare industry covers a variety of tools and services that healthcare companies can leverage to improve their litigation outcomes. 

Dr. Bill Kanasky gives an example of how a plaintiff reptile attorney can take advantage of even the most educated healthcare professional by deploying the Reptile Theory. These attacks can be prevented if the healthcare professional is provided the proper neuro-cognitive training in advance of deposition and trial.


Healthcare corporations are in the crosshairs of the reptile movement because of the prevalence of negative outcomes. Healthcare insurance companies and hospital systems must get ahead of the reptile attack by being proactive, by doing early research, and by protecting their witnesses prior to deposition.


Dr. Bill Kanasky explains why is witness effectiveness training is crucial for healthcare companies due to how healthcare professionals are hardwired to think, to listen, and to communicate in a certain way in a healthcare setting and how that works against them in the adversarial setting of a deposition and trial.


Dr. Bill Kanasky describes how our Ph.D.-level clinical and behavioral psychologists work with healthcare professionals at all levels to identify their vulnerabilities. Our highly experienced team teaches them how to manipulate their own brains so they listen and think differently, control their emotions, and respond in a way that provides a level of protection against the very aggressive plaintiff attorneys trying to take advantage of them.


Dr. Bill Kanasky explains how dangerous it is for healthcare corporations and healthcare insurers to use historical data or simply just "guess" how a specific case will play out and how much its worth. Each case must be evaluated based on its unique circumstances using a scientifically valid research methodology.


Dr. Bill Kanasky shares how healthcare companies use CSI for focus groups to explore what type of case they have very early in the case. Focus group sessions provide answers that can help guide the healthcare corporation through discovery and as they approach mediation. Focus groups can also inform the legal team's design of a future mock trial to help with the prediction of liability and damages going forward.


Dr. Bill Kanasky explains how healthcare companies can benefit from conducting mock trials as part of their litigation process. Dr. Kanasky discusses the benefits of mock trials for both case assessment as well as to test the effectiveness of the witnesses, the exhibits, the attorneys and their themes and their theories and their arguments.


Dr. Bill Kanasky highlights the concern that all healthcare companies must be cognizant of: when involved in litigation, they have both a financial exposure, as well as a reputational exposure, and how jury consulting can help mitigate the risk to both.


Video summary

What is an example of a reptile attack?

For example in healthcare, if a reptile plaintiff attorney was deposing a physician, there'd be a list of questions upfront. That would be things like, "Doctor, you'd agree with me that ensuring patient safety at all times is your top priority as a physician." A doctor that does not have our neurocognitive training is automatically going to agree with that because that's how their brains are wired. That's how these doctors are trained, but the word ‘safety’ in the phrase ‘patient safety’ does not mean the same thing legally as it does clinically. That's why they're making this cognitive error over and over. Then the next list of questions are going to be, "Well, if you ever needlessly endangered one of your patients, you'd be violating the standard of care as a physician, right?" Now, they have to say yes because they've already agreed to the first reptile question, so there'll be a series of questions like that, which all link together. Then once the physician is locked into that position, the plaintiff attorney will go right to the case facts and say, "Well, you didn't order this test. You didn't order that test." You were called at 5:30, you showed up at 6:30 to see the patient. Therefore, safety wasn't your top priority, was it? That's the reptile trap that we're talking about. Completely preventable, but requires the neurocognitive training to not fall into those traps.

Why are healthcare companies so susceptible to plaintiff reptile attacks?

Healthcare corporations are in the crosshairs of the reptile movement. There are several industries that are, but healthcare ranks up there in the top two because you have bad outcomes in healthcare. You have complications, people have complicated medical illnesses, they have complicated medical procedures, and you do have negative outcomes. It's very fertile ground for the reptile plaintiff attorney. So, healthcare corporations, whether it be insurance companies or hospital systems, must get ahead of the reptile attack. And how do you do that? Being proactive. The number one thing that the reptile attorney wants to do is to depose those nurses, depose those doctors, and get them to make concessions that will increase the value of the case so that they can get paid their money, much more money than the case is actually worth. Therefore, if the healthcare company can recognize this is happening, get out in front of that, protect those witnesses, it can really suck the economic life out of that case if done appropriately.

Why is witness effectiveness training crucial for healthcare companies?

Healthcare companies badly need witness effectiveness training because healthcare professionals are hard wired to think, to listen, and to communicate a certain way in a healthcare setting. And what do healthcare people do? They help people. Their job is to go around all day helping people; nurses, doctors, this is what they do day in and day out. You get that type of personality, that type of brain; I call it the healthcare brain. You put that into a litigation setting, they're going to crash and burn every single time because the plaintiff attorney can fully take advantage of that helpful nature. So what we do at CSI is we have a very specific healthcare employee model, a methodology, a neuroscientific methodology that we put these healthcare witnesses through to help rewire their brain, so that they cannot be taken advantage of by plaintiff's counsel at deposition or at trial.

What makes CSI’s witness effectiveness training for healthcare providers unique?

We have a training program for any healthcare professional, from the lowest level nurse all the way up to the top surgeon, to show them how their brain is wired and where their vulnerabilities are at. Most healthcare people are great people. They care about their patients, they care about other people, and they want to come into the testimony and do a good job. We actually map out their brain circuit and show them where they're vulnerable. We teach them how to manipulate their own brains so that they listen very differently, they think very differently, they control their emotion very differently, and they respond very, very differently. And so that provides a level of protection for them against the very aggressive plaintiff attorneys trying to take advantage of the healthcare professional.

How can healthcare companies and insurers benefit from litigation risk assessments?

Healthcare companies, both healthcare corporations and healthcare insurers can highly benefit from litigation risk assessments from CSI. The healthcare industry has thousands and thousands of claims against them annually. They get sued constantly. And they have to figure out, "Which one of these cases is going to hurt? Which one of these cases is going to explode in my face?" And how do they do that? Well, oftentimes, they guess. They look at historical data. They ask the attorney, "What do you think about this?" And no one has any scientific data that's predictive.  So what the healthcare company or healthcare insurance company can do is consult with Courtroom Sciences; have us come in, do an empirical scientific model for them to tell them their chances of winning, their chances of losing. And if they do lose, what are we talking here value-wise? Is it five million dollars? Is it a 100 million dollars? The only way to do that is using the scientific model. And the only way to use the scientific model is to use Courtroom Sciences.

How can healthcare companies benefit from using focus groups?

Healthcare companies use CSI for focus groups to explore what type of case they have very, very early in the case. They're not necessarily ready for a mock trial yet. There's still plenty of discovery. So mock trials are not appropriate that time, but they can run the basic facts of the case, the basic story from the plaintiff's perspective by the focus group panel, and then test several theories and kind of see what sticks.  Those focus group sessions give you basic answers that can help the healthcare corporation be guided through discovery. So as they approach mediation, they kind of know what they're getting into and if they do have to follow up with the mock trial after some discovery has been done, the focus group will help them design that mock trial very effectively to help with the prediction of liability and damages going forward.

What are the benefits of mock trials for a healthcare company?

Healthcare companies can benefit from mock trials in two ways. Number one is case assessment. When a hospital system, for example, gets sued they need to figure out is this case a winner or loser? Is it defensible or not? And they don't know the answer to that question. A scientifically, empirically-based mock trial would give you those answers on liability and how jurors feel about the case. Then also if jurors did feel that the hospital system or healthcare corporation was liable, what are we talking about as far as the millions of dollars maybe in damages? The mock trial is the only way to get that answer. Then obviously if they do end up in a courtroom one day, the mock trial is a must to test the effectiveness of the witnesses, the effectiveness of the exhibits, the effectiveness of the attorneys and their themes and their theories and their arguments. There's no other way to adequately prepare for trial unless you conduct a mock trial before you actually get into the real trial setting.

How can jury consulting benefit a healthcare company?

A healthcare company can benefit very highly from jury consulting, because when they go to trial, healthcare corporations are not just putting their wallet on the line, they're putting their reputation on the line. I mean, imagine if a healthcare company, a local hospital, a metropolitan hospital, they get hit for a high damages award, that's gonna be all over every newspaper in town and maybe even nationally. What jury consulting can do for the healthcare corporation is to protect them from that newspaper article. Meaning, having one of our staff members from CSI, that has Ph.D. level psychological training, sit with the legal team and help them, assist them in plucking out those jurors that are going to be a nightmare for the healthcare company during deliberations. Otherwise, the statistical odds of one of those high damages jurors slipping through the cracks in jury selection are extraordinarily high, without that type of help from CSI.

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