Wednesday, April 22, 2015

When Patients Equate Happiness With Health


Most pregnant women say a healthy baby trumps all other concerns.  As it turns out, though, a sizeable (and vocal) group of mothers claim labor and delivery experiences have caused them trauma akin to what soldiers suffer during battle.  Even though the end result had no medical issues, these mothers say only a happy mom and baby can truly be healthy.

Web sites such as ImprovingBirth.org (tagline: American maternity care is in crisis) and hundreds of Facebook groups encourage mothers to post about their negative birth experiences.  From unnecessary C-sections to forced episiotomies, VBAC refusals and unwanted inductions, women share a variety of claims about what they describe as the “trauma” and “abuse” of giving birth in most of America’s hospitals.

It can be easy to just dismiss such women out of hand as overly emotional, but the fact remains that there is a growing sense that pregnant women should have more rights.  And hospitals are responding in kind, with an increasing number of “gentle Caesareans” provided to better involve parents throughout the surgery and allow skin-to-skin contact immediately after delivery.

These trends become relevant in the context of medical malpractice when there are allegations of poor treatment, unwanted procedures and failure to sufficiently inform the patients.  While the defense typically focuses on the science-based claims in evaluating a lawsuit, we have observed that the more emotional allegations can resonate strongly among jurors with similar negative healthcare experiences. 

This is why we have started asking in our pre-focus group questionnaires whether jurors have ever considered suing due to a poor healthcare experience – not just whether they have actually done so.  Similarly, during voir dire we recommend probing as deeply as the court will allow into relevant negative experiences, since some of the attitudes that will shape juror opinions may not come out with simple yes-or-no questions about whether they have filed a lawsuit.  For example, ask women with children whether they wanted to have C-sections rather than simply whether they had them.  Even if your case involves essentially the opposite allegation — that a C-section should have been performed earlier — a juror’s belief that they were not given enough power during their delivery experience may make them more likely to align themselves with the plaintiff.  Also, when conducting social media audits of prospective jurors, be on the lookout for “likes” or posts about activism organizations.

The concept of choice has always been of fundamental importance in telling your story to jurors.  Understanding what healthcare choices were turning points for your potential jurors, and their feelings about those choices and those of their caregivers, will be key in shaping their opinions.  Contact Senior Vice President Claire Luna at 714.754.1010 or cluna@juryimpact.net if you want to discuss how to translate healthcare trends into a more effective defense story.

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