MedStar’s Larry Smith – In Court, “Fairness” Matters More Than the Law

Jury Impact’s new monthly Internet radio show “Trial Talk” interviews high-profile leaders in litigation to get their opinions about trial trends around the country.  In our first edition, we interview Larry Smith, head of risk management for MedStar Health, on trial tactics, characteristics of a great defense lawyer and the future of healthcare in America.

To listen, click here Larry Smith Interview or visit our website at www.juryimpact.net.

Here are some snippets of the interview:

Q:        What’s the most important quality of a great trial lawyer?

A:        “Somebody who can tell the story, somebody who can convey [to a lay jury] a very complex set of medical issues.  It is almost like everything else that we do in life – [to be successful you must have an] ability to relate.  The ability to relate from one human being to another makes a tremendous difference…  In medicine, sometimes the law doesn’t mean a whole awful lot.  What does mean a lot is the story.”

Q:        How do different jurisdictions influence verdicts?

A:        “Malpractice is a local phenomenon. [At MedStar] I have six different jurisdictions I have to worry about: five in Maryland and one in the District of Columbia, and they are all different.  If you take the same case and try that case in DC 10 times, you may win that case eight times.  If you take that same case and try…in Baltimore City with the same witnesses, same everything, [you are likely to] lose that case probably [eight out of 10 times].  So part of the analysis has to be, ‘do I realistically have a chance with a jury [in this jurisdiction] to prove to them what I need to prove in order to prevail?’”

Q:        How important is “humanizing” witnesses?

A:        “One of the lawyers I enjoy working with said to me before a trial – we [were putting on the stand] one of [our] nurses [who was also] one of the defendants [in the case] who was really well credentialed.  She also was a member of the Armed Forces before she became one of our [nurses] – and he said, ‘I’m going to spend 30 seconds on her academic credentials, and I’m going to spend 10 minutes on her personal credentials.  I’m going to [show] this jury what a wonderful person [she] is.’  And, I’ve got to tell you, just watching the jury…you could see them really tuned in.  They could care less what school she went to; they loved [the fact that she served her country and had given such great] public service...”

Q:        What’s the next “big thing” in healthcare?

A:        “We’re not [slowly] moving towards [hospitals employing doctors], we are right in the thick of it… I looked at the data recently, and four years ago about 50% of the physicians in this country were employed [directly] by a healthcare [system] or an insurance company.  Today, that [number] is 77% and it is expected in the next two years to be over 80%.  So, we are talking about a smaller and smaller number of physicians who are going to be independent and more and more physicians who are going to tie their [professional] practice to a healthcare [system] such as MedStar…or one of the insurance companies...” 

Q:        Talk about the future of patient care.

A:        “I have seen lots of changes—managed care and the coming and going of managed care, development of healthcare systems like MedStar.  What we’re seeing right now, I hope, is…the beginning of…a transformation [in the] way in which we provide care to patients.  …If it is done right, rather than being reimbursed… on [the basis of] what I do to the [patient], I’m going to be rewarded on how well I [maintain the health of] populations of [patients]. …[How can I keep] people out of hospitals, [and how can I keep them at home] with their families?” 

Jury Impact will be conducting these interviews monthly, so if there are any topics you would like explored, or suggested guests for our show, please feel free to call us at (714) 754-1010 or email us at cluna@juryimpact.net. 

The Right Words in the Right Venue

True Story. We were listening to the radio the other day as a German bakery owner hoping to entice new customers explained in his thick accent that he was a “master-baker.” We laughed and then decided to remind everyone of the importance of choosing the right words in the right venue.

Words create emotions and build context for the audience. And as you probably know, choosing the right words and using them to develop a context that benefits your case is the difference between communicating your point persuasively and communicating something very, very different.

We recently fielded a survey in which jurors were asked what attributes make a good nurse. Respondents were offered a range of choices including “advanced specialty training,” “responds quickly,” and “at least five years experience.”

And what was the highest-scoring attribute by a 2:1 margin? “A kind, compassionate bedside manner.”

This response mirrors our national research findings, where jurors consistently cite “compassionate," “caring” and “spends more time with patients” as the qualities they most desire in a nurse. Using language that evokes positive perceptions of a nurse or a witness early in trial can have a tremendous effect on how jurors filter and envision the details of an event.

Next time you’re in trial, use the emotional words that will play to predispositions about what a juror wants in a caregiver or other witnesses. It’ll paint a positive picture in jurors’ minds. Call us if we can help you choose the right words for your next trial.

Things That Make You Go Hmmm…March 2010

Unless you’re a superhero masquerading as an attorney, chances are telepathy isn’t among your abilities. Instead, you’re stuck divining jurors’ thoughts by monitoring body language or note-taking – and assuming feverish writing is related to your brilliant cross-examination, rather than a grocery list or screenplay pitch.

Fortunately, more and more courts are allowing jurors to submit written questions to witnesses following the attorneys’ examinations. These questions provide a much better gauge of juror leanings during trial by revealing what made sense to them, what did not, and what else they want to know.

Although some lawyers may prefer the “ignorance is bliss” approach to trial – learning what the jury was thinking only when the verdict is read and not before – we respectfully disagree.

As we have observed during our focus groups and mock trials, the ability to identify and answer questions from the outset prevents the dangerous juror tendency to make up their own answers based on potentially inaccurate, pre-existing knowledge. Pre-trial jury research can help to eliminate and address the majority of likely juror questions, and allowing jurors to submit questions during trial adds another layer of proactive protection from harmful juror assumptions.

During a recent trial, juror questions were eye-opening. After nearly four hours of expert testimony explaining the plaintiff’s causation theory, a high-priced, self-important expert witness received the following query: “So I don’t understand…what exactly is your theory on why the plaintiff was injured?”

With that one question, from arguably the most intelligent juror on the panel, the defense knew the plaintiff’s “star expert” explanation had failed to resonate, and, most importantly, that despite four days of testimony, jurors were still observing the plaintiff’s case with a highly critical eye.

So until your superpowers include mind-reading, encouraging the court to allow juror questions can be a great way to get into jurors’ heads and adjust your case accordingly – before they announce a verdict you don’t want to hear.

-Claire Luna

Jury Impact's 2009 Med-Mal Awards

The “fashionistas” are out and E!’s “Red Carpet” is back, and that can only mean one thing – Oscar season. So in the spirit of the festivities we’re presenting our own "2009 Med-Mal Awards!”

Last year, we conducted research in med-mal cases nationwide. Despite radical differences in fact patterns and jurisdiction, similar themes--for the plaintiff and defense--always seem to register. We see it time and again…jurors “classify” cases into a few categories. That means common themes emerge. So which themes were juror favorites in 2009?

First, our award for Most Popular Plaintiff Theme. And the nominees are:

Delays in Care
Communication Breakdowns
Not Enough Tests
High-Risk Patients Deserve a Higher Level of Care
The Splash Effect: when jurors apportion responsibility to everyone
because they perceive negligence on one party.

And the award for Most Popular Plaintiff Theme goes to…“The Splash Effect!” In a whopping 38% of cases, we saw “splash” in one form or another.

Next, our award for Most Resonant Defense Theme. And the nominees are:

Credible Alternate Causes
Inevitable Outcome
Moment-to-Moment Care
Personal Responsibility: either failing to take care of themselves
and/or for not communicating with caregivers.

And the award for Most Resonant Defense Theme goes to…“Inevitable Outcomes.” In a massive 56% of our cases last year, jurors expressed the opinion that “outcomes were inevitable” because a pre-existing or rare condition prevented caregivers from effectively diagnosing or treating the patient.

Uh-oh, the band is starting to play. How close was the vote? To find out, or for more information about themes that resonate and the language we use to address them, please don't hesitate to contact us.

-Stephen Duffy

Board Certification

During a recent focus group involving hospital credentialing, 18 of 24 jurors said they believe doctors must be board certified to practice medicine.

Based on the frequency of similar responses, we began surveying on the issue last year during groups involving medical malpractice. So far we’ve asked 487 jurors: “Do you think your primary care doctor is board certified?”

Of those polled, 18.9% said “I don’t know” and an astounding 80.3% said “yes.” Perhaps most telling is that only four out of 487 said “no.”

This means that a vast majority of jurors from all regions, backgrounds, ethnicities, genders and incomes assume their doctor is board certified. Our experience tells us this confusion results from an assumption that board certification and medical licensing are one and the same.

Naturally, the question arises: if a doctor involved in a lawsuit is not board certified, how do you discuss the issue? Conversely, if a doctor is board certified, how do you use juror predispositions to your advantage?

Second question first – when doctors are board certified, you need to talk about it. Play to juror predispositions and highlight doctor education, training, experience, as well as the dedication it takes to pass board exams and establish oneself in a specialty. By playing to juror perceptions that doctors should be board certified (whether actually required or not), you establish and bolster their credibility.

Now to the tougher question where there’s no easy answer. When trying a case involving a doctor who is not board certified, you must recognize that jurors are going to perceive it as a net negative. We have tested many ways to address this issue during research, with limited success.

With that said, a lack of board certification makes contextualizing the rest of the doctor’s experience all the more important. We suggest spending considerable time talking about the education they do have, including the number of surgeries or other relevant procedures performed, specific qualifications, fellowships completed, and other credentials. Highlighting that experience can somewhat mitigate the negative biases seen in the above juror statistic.

During the coming year, we’re adding new questions to our Depth Charts to provide you with more quantitative data. If you have any suggestions for juror questions or things you’d like to know specifically, let us know. We’d love to hear them.

-Todd Fairbanks

Things That Make You Go Hmmm...

Thinking about the 12 Days of Christmas reminds us of one of the most effective argument strategies we see: Use a couple of numbers.

Magazines are well aware of this approach. Just look at the monthly covers trumpeting lists such as “Top 100 colleges,” “400 richest Americans,” and the women’s magazine classic, “Seven Ways to Please Your Man!”

Recently we watched jurors deliberate a case in which a doctor failed to diagnose an extremely rare disease in an obese patient. The patient’s presenting symptoms: moderate muscle pain and high blood pressure. The doctor assumed a pulled muscle and too many Big Macs, and said to come back if the pain persisted. The true pain source turned out to be an extremely rare, deadly bacteria.

During discussions, plaintiff-leaning jurors zeroed in on the prevailing predisposition that “doctors are rushed and don’t spend enough time with patients.” Unfortunately, the initial pushback by defense-leaning jurors was weak: “Doctors can’t always diagnose these rare conditions right away.” The problem here was that plaintiff jurors simply could not understand just how little information the patient’s symptoms provided the doctor.

Adding a number helped change this. Jurors were introduced to some statistics: There are approximately 5,100 potential diagnoses for the combined symptoms of pain and high blood pressure. During deliberations, the defense-leaning jurors effectively adopted this number as their theme and supported it with another number: The disease occurs in no more than one in every 305,000 people.

Happy holidays and the very best wishes for the New Year.

Poll: Apparent Agency

Agency claims are some of the most difficult to defend in medical malpractice work, due to jurors’ predisposition that if a medical mistake happens inside a hospital, then the hospital is ultimately responsible.

We tried to quantify this perception in a recent national poll, asking 1,001 Americans whether they agree or disagree with the following statement:

If a medical mistake occurs in a hospital, then the hospital is responsible for everything that happens under its roof. The results show that seven out of 10 jurors are likely to assume from the outset that a hospital is responsible for the actions of any and all doctors practicing within the hospital walls.

STRONGLY AGREE: 47.3%
SOMEWHAT AGREE: 28.1%
SOMEWHAT DISAGREE: 11.2%
STRONGLY DISAGREE: 9.2%
DON’T KNOW/REFUSE: 4.2%

In addition, these perceptions of blanket responsibility increase as jurors' education and household income levels decreased. In fact, 63% of jurors with less than a high school education and 57% of those with only a high school education strongly agreed, compared to 46% of college graduates and 40% of those with post-graduate study or degrees. Finally, 64%of those with household incomes of less than $30,000 strongly agreed, while just 36% of those with household incomes of more than $100,000 strongly agreed.

Overcoming the predisposition is possible, but as you can see , getting the right jurors--and the right message--is key.

*The poll, conducted from July 24-27, surveyed 1,001 U.S. residents older than 18 and has a 3.1% margin of error.

Who Do You Trust?

In our 2009 medical malpractice research, we’ve been asking jurors who they trust more, doctors or nurses. The results are eye-opening:

Of the hundreds of jurors we interviewed nationwide, 63% of those who trust nurses more supported the plaintiff.

On the other hand, only 43% of those who trust doctors more end up siding with the plaintiff.

Jurors who trust doctors and nurses “the same” backed the plaintiff even less frequently—40%.

Incorporating this question into voir dire efforts could “red flag” jurors naturally predisposed to support plaintiffs in medmal litigation.

Contact us if you are interested in hearing more about this or other findings from our juror database. Or, if you would like a full, in-person presentation of our findings, let us know.

Study: 50 Percent of Smokers Keep Puffing After Cancer Diagnosis

According to a Fox News article:

Even though smoking is a risk factor for multiple types of cancer, more than half of smokers diagnosed with the disease keep using tobacco, and doctors aren't doing enough to help them quit.

A West Virginia University survey published in the Journal of Oncology Practice found that 44 percent of smokers quit after being diagnosed with cancer.

Now, what was your first reaction upon reading that lede? I'm guessing something along the lines of, "What a bunch of bloody fools!"

And that is precisely the reaction we encounter from focus group jurors when discussing smoking habits. In medical malpractice cases, we've observed how a patient's decision to smoke typically illicit strong opinions about personal responsibility. However, it's nothing compared to the vitriol jurors unleash on patients who continue to smoke or resume poor health choices after a bad diagnosis.

Which brings us to the next finding of the study: "doctors aren't doing enough to help them quit."

Less than two thirds, 62 percent, say they received advice from doctors or nurses about quitting the habit.

Dr. Jame Abraham, the study's lead author, says the survey shows there's a need for intervention programs to help cancer patients quit tobacco.

Really? Being diagnosed with cancer isn't enough to make someone quit, but a nurse's stern words and a colorful pamphlet are? Talk about a personal responsibility deficit.

Especially in more conservative jurisdictions, a perceived lack of personal responsibility on the patient's part can heavily influence a jurors' desire to award money.

Med Mal Stat: Parents with Children Living at Home More Likely to Find for Plaintiff

Every medical malpractice lawyer will tell you cases involving an injured or deceased infant can be extremely difficult to defend--even when the medicine is solid. Sympathy and the subsequent desire to award money--regardless of circumstance--can override many jurors' rational thought process.

We've seen jury instructions openly ignored (and jurors finding no evidence of negligence change to a plaintiff verdict) due to an intense desire to ensure the child is "taken care of."

This makes voir dire even more crucial. Because jury selection is really jury deselection, what types of jurors do defense attorneys most want to get rid of?

Parents. Especially parents with children at home.

In a recent analysis of 600 "bad baby" verdicts culled from our focus group database, we learned:

Parents were 53% more likely to find for the plaintiff than jurors who have no children.

For parents whose children live at home this figure jumps to 62%.

Obviously every juror is different (as are their tendencies to let emotions guide verdicts) but these statistics mirror a common finding we have observed in countless mock trials and focus groups across the country.

-Stephen Duffy