Overcoming Sci-Fi Expectations

We’ve written frequently about jurors’ elevated, unrealistic expectations for healthcare and medicine, but one area where we’ve seen this phenomenon rear its ugly head the most is related to hospital technology.  In short, jurors expect seamlessly integrated, technologically advanced hospitals like something out of a sci-fi movie or TV show rather than the imperfect reality.

For example, we’ve worked on several cases where different clocks set to different times several minutes apart gave the appearance in the medical record that inexplicable delays occurred while delivering critical medical care.  To a layperson, of course an institution as sophisticated as a hospital – where every minute counts – has all of its clocks synchronized through GPS or an atomic clock.  Right?

The reality – that MRI machines, heart monitors, wall clocks and nurses’ watches are all routinely different – surprises jurors, and they’re initially resistant to believing this is normal and acceptable at hospitals around the world and in the United States.

Similarly, we regularly encounter drug interaction or overdose cases in which it was later learned a patient had more in his system than he told caregivers.  On TV, criminal suspects and new patients alike have test results available seemingly within seconds of blood being drawn.  Surely the hospital could have run a simple tox screen and learned exactly what that patient had on board in just a few minutes.  Right?

Once again, the reality that tox screens – and many blood tests – are not routine and take several weeks to return results doesn’t meet jurors’ expectations, and they can end up holding the hospital to an artificial standard.

When expectations are so out of whack with reality, it’s an uphill battle to get jurors to accept that what you’re telling them is actually true.  To overcome this challenge, we’ve found that a two-prong strategy works best: 

1. Rely on both sides’ experts.  Jurors know you’re paying your experts, and that you wouldn’t be paying them if they were going to say unhelpful things.  That’s why it’s so helpful to get the other side’s experts to corroborate what you and your experts are saying.  Although this can be challenging (depending on the issue), an expert can’t really avoid admitting that in fact it does take more than a few minutes or hours to get tox screen results.
2. Repetition repetition repetition.  Entrenched beliefs are the hardest to overcome, which is why we recommend telling jurors over and over again about the reality that doesn’t match their expectations.  In the above example about tox screens, ask all of the witnesses about it, not just one.  If you’re dealing with an issue of unsynchronized clocks, hit on it in your opening, ask both sides expert witnesses’ whether their own clinic or hospital clocks are all synchronized (they’re not), and reiterate it in your closing.  By the end of trial, you’ll convince them that of course clocks aren’t all synchronized and tox screens take time. You’ve changed their expectations to match reality.

These are only two examples of how hospitals aren’t as high tech as jurors expect, and any med-mal lawyer or hospital risk manager can come up with many others.  But the principles of how to overcome them apply no matter what the issue.

If you have a case where you’re facing elevated, unrealistic juror expectations, we’d love to help.  Contact Senior Vice President Claire Luna at cluna@juryimpact.net or 714.754.1010 for more information.