The human brain is a magnificently complex organ. According to Dr. Eric Chudler, a bioengineer at the University of Washington, it contains approximately 100 billion neurons, which work hard to transmit and process information.1 Despite this complexity, our brains use surprisingly simple processes to handle information and establish a decision-making framework. Sometimes, however, the brain’s tried and true approach can lead us astray.
Recent studies demonstrate how our expectations can actually affect our perceptions of events. Our brains seem to be programmed to confirm our expectations of the world around us — the “placebo effect” being among the established ways in which our minds can be trained to fool our perceptions. These studies underscore the importance of attitudes and expectations in shaping our perceptions of events around us. When their findings are applied to the litigation setting, the role of juror expectations and attitudes becomes even more important.
A juror’s willingness to embrace your case narrative at trial may hinge on whether or not that narrative is consistent with his or her relevant attitudes and expectations. Once a juror develops a strong attitude about your case, it is extremely difficult to shake him of his opinions as he will seek out evidence and testimony that confirm this attitude, and disregard evidence and testimony that disconfirm it.
Nowhere is the need to understand juror attitudes and expectations greater than in medical malpractice litigation. Such cases come face-to-face with the everyday experiences of jurors. Every juror brings to the deliberation room attitudes about and expectations of health care providers that are based upon their life experiences.
The following discussion focuses on some of the common attitudes and expectations jurors bring to the table in medical malpractice litigation.2 This list is not intended to be exhaustive, but rather addresses some of the common expectations across a wide variety of medical malpractice cases.
General attitudes. In 2003, Tsongas Litigation Consulting, Inc. conducted a survey of more than 600 jury-eligible citizens from the Northwest.3 Participants were asked to rate the quality of care provided by our nation’s health care system; approximately 22 percent gave a “poor” rating. But more than 40 percent indicated that the quality of care has gotten worse over the past five years. When asked which side they would tend to lean toward at the start of a trial, 38 percent said they would favor the plaintiff, while only 28 percent would favor the defendant/doctor.
Type of provider. The same survey asked participants to rate how “caring” they believe different types of health care providers are. Almost 90 percent rated doctors as “somewhat” or “very” caring. Unsurprisingly, nurses were viewed in the best light with 95 percent rating them as “somewhat” or “very” caring.
But when the focus group was asked to rate various organizational entities, the picture changed. Respondents provided a “somewhat” or “very” caring rating as follows: hospitals — 83%; health insurance companies — 37%; and HMOs — 31%. Finally, when asked to rate the level of ethical standards within the health care industry, more than 30 percent chose “somewhat unethical” or “very unethical.”
Waiting time. A recent study found a 4-percent annual increase from 1997 to 2004 in patient waiting time for emergency care.4 For example, heart-attack patients waited an average of 20 minutes in 2004 versus only 8 minutes for the typical wait time in 1997.
Such statistics confirm the common experiences of jurors, who consistently tell stories of long wait times in doctors’ offices and hospitals. This is especially problematic since we naturally tend to be so self-centered in this respect. Thus, it is not uncommon to correlate long waits with “uncaring” providers rather than recognize the practical difficulties faced in addressing the needs of many patients.
Lack of attention. This is one of the most commonly reported negative health care experiences.5 Specifically, many patients complain that providers charge a great deal of money and then quickly push them out the treatment room door.
This experience is perpetuated by the fact that providers are businesses that seek to see more and more patients per day to maintain a profit margin. This is particularly true with HMOs and health cooperatives, which often are perceived as overcrowded, resulting in limited interactions with physicians.6
We naturally assume that proper diagnosis requires time and communication. Likewise, we are quick to assume that a doctor who does not spend a great deal of time assessing a complaint and communicating with the patient must not be doing his or her job.
The “magic bullet.” The “magic bullet” expectation refers to a general belief that in an emergency situation one need only make it to the hospital where a cure is all but assured. In 2000, the then-president of the American College of Physicians attributed such unrealistic expectations primarily to media portrayals of the medical profession, along with “slick” radio and television advertising for medical institutions suggesting that a simple visit to their facilities will lead to a cure.7
Popular medical dramas such as ER, House and Grey’s Anatomy further complicate this perception by portraying extraordinary tales of heroism and rare failure in emergency rooms, which often conflict with reality.8 For example, an oft-cited study in the New England Journal of Medicine found that television portrayals of CPR suggest a survival-to-discharge rate of 77 percent. The actual survival rate is closer to 40 percent.
“Technology will save us.” Another similar dimension of the public’s heightened expectations relates to advancements in medical technology over the past 50 years. Researchers from the University of California argue that “the sociocultural landscape that features enormous faith in bio-scientific advances and medical breakthroughs” focuses the expectations of plaintiffs and their families on the “best-case scenario of what is clinically possible.”9
These expectations are further perpetuated by sensationalized media accounts of technological breakthroughs. Constrained by our “sound-clip” culture, these accounts often focus on the potential of a particular technology, rather than the limitations of its immediate implementation. In their work, the University of California researchers found older Americans often have a “presumption that emerging therapies and medical technologies can and will make their lives longer and better into an indefinite future.”
Antibiotics. The expectation of the efficacy of antibiotics has led to the widespread, unnecessary and potentially dangerous use of these drugs. Patients do not want to take the time to go to the doctor only to leave without a prescription.
Unfortunately, ubiquitous advertising of new drugs has propelled this idea well beyond antibiotics alone. Numerous other medications appear to fit within this category. Consequently, people adopt a “nothing to lose” mentality. After all, medicine is there to cure us, right?
Tsongas mock-trial research has demonstrated over and over again that, paired with the luxury of 20/20 hindsight in a medical malpractice case, mock jurors often conclude that if a patient could have possibly benefited from antibiotics or other medication, he or she should have received it, regardless of the adverse effects. The more severe the patient’s injuries, the more rigidly this attitude is adopted.
Negligence vs. cause. The relationship between negligence and proximate cause is often difficult for jurors to understand. Fortunately, for defendant health care providers, we are seeing more and more instances in which jurors and/or mock jurors determine that a provider was negligent, but that the negligence was not the cause of the injuries.
The conflation of negligence and cause typically stems from two issues. First, jurors may feel frustrated with the manner in which treatment was handled, even if the key actions of the provider ultimately met the standard of care. The second issue is what is called a post hoc ergo propter hoc fallacy. Put simply, this is the assumption that because one thing happened immediately before another, it must have been the cause of it. This is the same line of reasoning that drives superstitions such as the baseball player who refuses to wash his cap until the team loses or a hitting streak ends. It is a very simple way to make sense of what often are otherwise complicated medical explanations.
Medical error vs. Negligence. One of the most difficult types of medical malpractice cases to defend involves medical error, as opposed to negligence. Jurors have difficulty understanding that a physician can commit an error that causes injury, but still meet the standard of care.
A well-known study conducted at the University of Missouri revealed a 31-percent error rate in interpreting radiology reports, regardless of the experience of the radiologist.10 Other studies have led to similar conclusions. Put simply, radiologist error is an accepted possibility within the field of radiology. Reasonable, competent radiologists can differ on the significance of shadows and structures revealed on the film, but — in jurors’ minds — the negative outcome that engenders a medical malpractice lawsuit raises the bar for their performance.
20/20 Hindsight. Hindsight bias is a widespread phenomenon and especially pertinent in medical malpractice litigation. It finds ready application in missed-diagnosis cases, preferred-treatment disputes and failure-to-monitor complaints.
With knowledge of the ultimate outcome, it becomes particularly easy for jurors to conclude that the correct course of treatment should have been obvious to the health care provider at the time. This effect is magnified when medical matters are difficult for jurors to understand. Consequently, the plaintiff’s “if only” story can offer a simple way to make sense of more complicated issues.
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It is critical for attorneys to assess the everyday experiences and attitudes of particular venires in order to successfully litigate a medical malpractice case. This analysis should inform both the jury selection strategy — by focusing on the removal of jurors who hold attitudes adverse to your narrative — and on the case narrative itself — by adopting narrative appeals consistent with the panel’s everyday experiences.
While it is possible to work around some attitudes and expectations, remember: Our minds have minds of their own. Always at work is our prefrontal cerebral cortex — the stubborn part of the lobe that desperately seeks affirmation, looks for information that confirms our ideas about the world and rejects evidence that disconfirms those ideas. In the end, it is why Republicans listen to conservative talk radio and Democrats listen to liberal talk radio.
Thomas M. O’Toole, Ph.D., is a consultant in the Seattle office of Tsongas Litigation Consulting, Inc. Bruce Boyd, M.A., is a senior consultant in the Tsongas Portland office.
1 Eric Chudler, University of Washington, http://faculty.washington.edu/chudler/facts.html.
2 Portions of this list were adapted from an article entitled “The Anatomy of a Medical Malpractice Verdict,” published by the authors in the Winter 2009, vol. 70 issue of the Montana Law Review.
3 Tsongas Litigation Consulting, Northwest Juror Attitude Survey (2003).
4 Miranda Hitti, “Emergency Room Waits Getting Longer: Crowded Emergency Departments Part of the Problem, Study Shows,” http://www.cbsnews.com/stories/2008/01/15/health/webmd/main3717410.shtml (Jan. 15, 2008).
5 Allen D. Spiegel & Florence Kavaler, “Better Patient Communication Means Lower Liability Exposure,” http://www.managedcaremag.com/archives/9708/9708.reducerisk.shtml (accessed Aug. 1, 1997).
6 Kaiser Public Opinion Spotlight, “The Public, Managed Care, and Consumer Protections,” http://www.kff.org/spotlight/managedcare/upload/Spotlight_Jan06_ManagedCare.pdf (last updated Jan. 2006).
7 Whitney W. Addington, “What We Can Do to Help Patients Keep Their Expectations Realistic,” http://www.acponline.org/journals/news/jan2000/realistic.htm (accessed Mar. 4, 2008).
8 Susan J. Diem, John D. Lantos & James A. Tulsky, “Cardiopulmonary Resuscitation on Television: Miracles and Misinformation,” 334 New England J. of Med. 1578, 1578–79 (1996).
9 Janet K. Shim, Ann J. Russ & Sharon R. Kaufman, “Clinical Life: Expectation and the Double Edge of Medical Promise,” 11 Health: An Interdisciplinary J. for the Soc. Study of Health, Illness and Med. 245, 260 (2007).
10 J.L. Lehr, et al., “Direct Measurement of the Effect of Film Miniaturization on Diagnostic Accuracy,” 118 Radiology 257 (1998).
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