Guaranteed Safety: The Defense’s Unspoken Burden

We talk often in this column and in our consulting work about the “under their roof” bias, in which jurors hold a hospital responsible for any negative or unexpected outcome that happens to a patient while he or she is at that hospital, no matter whose fault it really is.  In medical malpractice defense, this bias is one of the most difficult to overcome.

A related phenomenon we’ve observed during recent research is the juror expectation of guaranteed patient safety, especially in cases involving custodial arrangements such as assisted living facilities, nursing homes, intensive rehabilitation facilities or in-patient psychiatric care.  The thinking goes that since these facilities charge money to take care of all a patient’s needs, they essentially assume responsibility for anything and everything that happens to the patient.

To many jurors, by accepting a patient, the facility effectively guarantees not only that the patient’s health care needs will be met, but also that nothing else bad will happen to them, such as suicide, becoming the victim of a crime or escaping and getting injured.  These expectations can be elevated depending on a facility’s admission and monthly price tags – and you should also be aware that fully 57 percent of jurors in one of our recent surveys indicated assisted living facilities are “overpriced” (compared to just 10 percent who said they were not and 33 percent who weren’t sure).

Complicating the issue is that many facilities – especially those serving vulnerable populations such as seniors or the mentally ill – unwittingly play into and encourage these expectations by touting residents’ security and safety in marketing materials and mission statements.  It’s all too easy for a plaintiff’s attorney to argue that the defendant “promised” nothing bad would happen to a resident, so any unfortunate occurrence must be the facility’s fault.

Like the “under their roof” bias, the expectation of guaranteed safety can be difficult to overcome at trial.  For that reason, we recommend you address it head on starting during voir dire.  This will allow you to identify and eliminate those potential jurors who hold this bias most strongly and will be unable to overcome it no matter what evidence is presented, as well as start to erode the idea of any “guarantee” in your jurors’ minds.

During trial, we believe it is essential to attack the plaintiff’s contention the defendant is responsible for anything that happens by demonstrating the event triggering the lawsuit – whether it’s a crime or an unfortunate accident – was outside what such a facility could reasonably anticipate or foresee.  This will arm defense-minded jurors to advocate to other jurors that there can be no guarantee none of life’s unforeseeable tragedies will occur.

Of course, the best way to overcome the presumption of guaranteed safety will vary greatly depending on the unique facts of each case.  If you’d like our advice on how best to apply our findings to your circumstances, contact Senior Vice President Claire Luna at 714-754-1010 or cluna@juryimpact.net.