If you read the papers or watch t.v., you may believe that medical malpractice suits are “out of control.” Conventional wisdom is that medical malpractice verdicts are soaring, and that “innocent” doctors are suffering at the hands of greedy plaintiffs, otherwise known as the individuals injured by those doctors. Many otherwise rational people even believe that injured patients – or the loved ones left behind when injury turns to wrongful death – should not be allowed to recover the full amount of their damages if that amount exceeds an arbitrary, preset cap.
But the medical malpractice facts prove otherwise. Indeed, in cases with strong evidence of medical negligence (as determined by independent, neutral researchers), doctors still obtained a defense verdict in 50% of cases. Additionally, in cases where the outcome of litigation is different from a peer assessment of the doctor’s conduct (in other words, other doctors believed that the defendant acted appropriately, but a jury found that the doctor was negligent, or vice-versa), the litigation outcome is statistically more likely to favor the doctor than the injured patient.
It is believed that this discrepancy is the result of jurors’ tendency to engage the emotional portions of their brains. While an injured patient may be emotionally compelling, so is a doctor who may lose his license, livelihood, and home if a plaintiff’s verdict is returned. Jurors thus have a tendency to want to give a doctor the “benefit of the doubt.”
Knowledgeable plaintiff’s attorneys, however, are developing new strategies to combat this pro-doctor bias. In the past several years, top medical malpractice attorneys such as those at Passen & Powell have begun shifting the focus of many of their cases away from expert presentations and towards common-sense arguments. In the past, medical malpractice cases have centered around medical experts who explained the medical issues to the jury, and established the medical standard of care that juries were asked to apply.
Under the new model, expert medical opinion testimony is still critical, but lawyers focus their presentation to juries on common sense bedrock principles of medicine that jurors can easily understand and identify with, such as:
• doctors must take precautions to avoid known risks
• doctors must avoid needlessly endangering their patients
• doctors must choose the safest alternatives available
• doctors must expose their patients to no more risk than necessary
This new strategy is based upon research from a variety of sources, including the Yale Medical School and doctors at the National Institute of Mental Health. What the research uncovered is that the most primitive part of the human brain – more primitive even than the brain’s emotional center – can have a profound impact on jury behavior. One of the most fundamental instincts controlled by the primitive portion of the brain is the instinct to avoid danger. When research juries were appealed to and asked to render a verdict that would be best for the community, they engaged this instinct and determined that to reduce the danger to the community, a plaintiff’s verdict is best.
Our top Chicago medical malpractice lawyers have incorporated this research into the cases we try. By putting the focus on the risks to patients, and the community, from the negligent actions of the doctor-defendants in our cases, we help juries to engage their primitive part of their brains. This strategy gives our clients the best chance of a plaintiff’s verdict, in spite of juries’ natural emotional tendency to favor the defense.
For a free consultation with an experienced Chicago medical malpractice attorney at Passen & Powell, call us at (312) 527-4500.