Posts Tagged ‘jurors’

The Fifth Element of a Medical Malpractice Case by Pat Iyer

Monday, October 19th, 2009
A near fatal overdose of Insulin

A near fatal overdose of Insulin

Linda (name changed) was admitted to an inner city hospital due to leg pain. She wandered through the hospital, searching for something. When she came upon an unlocked medication cart sitting in the hallway, she found it. She took a syringe, a bottle of Insulin, and a bottle of Lasix (reduces swelling) and injected herself with the contents of both bottles. Linda was a substance abuser, but it remains a mystery to this day why she injected herself with these medications. Within hours her blood sugar plummeted and she had a seizure.

After Linda’s acute care was over, it was clear that she suffered brain damage as a result of the drop in blood sugar. Her attorney filed suit against the hospital; his expert (me) opined that it was a deviation from the standard of care to not provide closer monitoring of this young woman. It was a deviation from the standard of care and against hospital policy to leave a medication cart unlocked.

Selecting a jury was tough. The jurors were asked this question: “Do you believe that a person with substance abuse is entitled to the same quality of care as someone who is not abusing drugs?” It took two days to find eight people who could say “yes”. I spent an entire day on the witness stand as each of the defendant’s attorneys cross examined me.  I was told by my client that I did well.  During one of the breaks, I met Linda in the ladies room. She was having trouble getting her clothes adjusted and tried to put her underpants on over her skirt. As a result of her brain damage, her mother had to care for Linda and her daughter; Linda had become easier to control and was on a Methadone program.

The jury came back with a verdict on behalf of the defendants. The plaintiff’s attorney concluded that the jury could not bring themselves to place money in the hands of a substance abuser. They may have also blamed her for what occurred. (Jurors are not allowed to be interviewed after trial in this state so it remains unclear why they came to that decision.)

I’ve recently learned this was the first and last medical malpractice case this attorney tried. Would a more experienced attorney have taken the case?

In order to successfully win a medical malpractice case, a plaintiff has to prove four elements.  (The plaintiff may be in the patient if he or she is alive and capable of filing suit, if not, the plaintiff might be a family member or other entity.)

1. The healthcare provider had a duty to give care to the patient (Duty)
2. The provider did not deliver care according to what the reasonably prudent person would have done in the same situation. (Breach)
3. There were damages or injuries to the patient. (Damages)
4. The failure to deliver care according to the standards of care was the direct cause of the damages (Causation)

The quality of the patient is the unofficial fifth element in a medical malpractice case. I have heard attorneys describe the ideal plaintiff as a person you would enjoy sitting next to in an airplane on a cross country flight. “She’s a church organist”, I’ve been told by an attorney who described a wonderful person. “He and his wife are really nice people”, another attorney said. Conversely, attorneys are hesitant to take a case involving someone who is in prison*, has an intravenous substance abuse history, or in some significant way radically deviates from the norm. The harder it will be for the jury to empathize with the plaintiff, the harder it will be for them to award money. Savvy plaintiff’s attorneys carefully evaluate the background, demeanor, personality and habits of potential plaintiffs. It is better to put the plaintiff on trial before the jury does.

* An exception may be made for people jailed for minor offenses who are the victims of neglect in jail
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For more on this topic, see Cultural Competence and Attorneys and How is the Economy Affecting Jurors.

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Posted in Damages, Expert witness, Medical malpractice, Trial lawyer skills, medical errors | No Comments »

How is the Economy affecting Jurors? by Pat Iyer

Monday, July 27th, 2009
Gently question jurors during voir dire

Gently question jurors during voir dire

The Aletheia Institute sponsored a webinar on June 24, 2009 that addressed this question from the perspective of five jury consultants. These are the takeaway points I gained from listening to this program.

Data from 200 trial consultants shows that 8 out 10 people think the economy is bad. A person who is pessimistic about the future is less likely to award high damages to a plaintiff. Older jurors are less pessimistic. Pessimistic and concerned jurors are frequently ineffective jurors and may be more critical of the plaintiff, accepting the stereotype of the plaintiff as a greedy person. Focus group data shows that jurors still judge the plaintiff more harshly than they do the defendant.

Those who are most personally affected by the economy are least likely to volunteer this information. Attorneys who are permitted to do voir dire with jurors should approach this question gradually. Draw jurors about by asking two follow-up questions for each topic, using such questions as: “How so?” “Please say some more?” “What else?”

Jurors are more willing to help someone who embodies social norms. Attorneys should make their client – plaintiff or defendant – appear as normal as possible.

Jurors may not be receptive to arguments of future wage loss unless the person was horribly injured. Given layoffs, the defense attorney may raise the argument – “How do we know this person would have kept this job, and that these future wage earnings are valid?”

After exposure to headlines about corporate wrongdoing, jurors are more receptive to the idea that people do bad things in their own self-interest. Attorneys should consider conducting a focus group on a day in the life video, but day-in-the life videos are not right for every case. Some things may be better left to the juror’s imagination.

  • The Aletheia Institute Trial Consulting Panel had 5 jury trial experts:
    David Wenner, Esq (Arizona) has written and researched on the subject of OJB (Overcoming Juror Bias).
    Phillip Miller, Esq (Tennessee) has done up to date surveying and research on the subject.
    Eric Oliver (Michigan) is nationally known for his ability to select (or deselect) juries.
    Katherine James (California) nationally recognized trial consultant, frequently invited to help lawyers and their clients.
    Alan Blumenfeld is another nationally known litigation consultant who, with his ACT of Communication partner Katherine James, advises lawyers, experts and clients on better communication skills during discovery and trial.

Pat Iyer is a founding member of this organization. She will be appearing on a program on Wednesday, August 26, 3 PM EST: AI will hold our second Free Aletheian Hour with our MedicalSchool panel discussing “The Good, Bad & Ugly Pain Tests Used/Misused by Medical Experts.” 

Interested in seeing this program? This free offer will end on September 1, 2009.

Event Title                “How Is The Economy Affecting Jurors”
Recorded Date         Wednesday, June 24, 2009
Go to www.remotecounsel.com
 
Enter event ID# and password (these are case sensitive and you can cut/paste)
 
            Event ID#       0906302080
            Password       3XZzb4
 
If this is your first time viewing a presentation at Courtroom Connect’s Remote Counsel site, you must enter your contact information in the login screen.
 
To go to full screen view, once video begins to play, right click on video window, select zoon and click full screen.  To return simply hit Esc key.
 
System Requirements
 
Windows Media Player version 9.0 or higher
Internet Explorer version 6.0 or higher
Internet connection (minimum download speed 256k)
Mac users require a Windows Media Player plug-in available free at
http://www.microsoft.com/mac/products/flip4mac.mspx
 
If you experience any problems, contact your system administrator or Courtroom Connect customer support at  877-838-9080  or e-mail streaming@courtroomconnect.com

Coming up:

On Friday, September 25 at 3PM EST, our EconomicSchool panel address – How to Make More Money and Save Time with New Professional Practices. For more information about AI, go to Aletheia Institute.

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Posted in Communication skills, Medical malpractice, Personal injury, Trial lawyer skills | No Comments »