Monthly Archives: October 2007

Medical Malpractice or Medical Mismanagement?

The Deliberations blog points us to a post from David Swanner at the South Carolina Trial Law blog. Mr. Swanner’s post points to the fact that medical malpractice trials are becoming harder to win, and suggests the following way to help the jury understand the case:

Don’t call it “medical malpractice” – call it “medical mismanagement.” As Swanner says:

The idea of malpractice in the jury’s mind means that the doctor was wrong. That he was intentionally wrong. That the Plaintiff is blaiming the doctor for being wrong. That the jury has to blame the doctor for being wrong. That the doctor was a bad doctor.

Juries are reluctant to do that.

I agree that most plaintiff’s malpractice attorneys don’t present their cases in a way that makes the jury want to award money. I’m not sure if Swanner’s method is the way to do it though.

Thinking back to David Ball’s advice in his seminal book Ball on Damages – jurors will forgive mistakes. We all make mistakes, and so we can sympathize with defendants who made a mistake. Jurors will forgive a physician who “failed to order a chest X-ray,” for example. After all, the doctor is busy, stressed, and relying on his vast education and experience to help a patient. A mistake here or there can be forgiven, right?

A better way to phrase things, when appropriate, is that the doctor “chose not to order a chest x-ray.” This indicates a conscious choice between right and wrong, or between ordering a procedure which could save a life and skipping it. Just like car accident cases – a jury isn’t as hard on someone who missed a stop sign as someone who “chose not to stop at the stop sign.”

My fear is that “mismanagement” is too weak. I think there are other ways to show the jury that the defendant isn’t necessarily a bad doctor, but simply did a bad thing in this one instance.

 I do think Swanner is on the right track – that maybe use of the term “malpractice” isn’t the best idea. One thing I see quite often is attorneys who get bogged down in the legalese – terms like “reasonable degree of medical certainty” and “breached the standard of care.” Attorneys do that because they are afraid that a verdict won’t hold up if they don’t use the “magic words” the courts seemingly require – and in some cases this might be true. Juries have to hate that stuff. Remember, they don’t think like we do. We’ve been around this legal stuff so long that we’re used to it.

How about this – try not mentioning the word “malpractice” at all unless a good explanation of the jury instructions requires it? Don’t know if that’s possible, but it would be neat to try.

(Michael J. Warner & Associates are medical malpractice attorneys in Rock Island and Moline Illinois. You can contact them here).

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Has a prospective juror heard about your case? Strike ‘em!

Sometimes, as we pick a jury, we run across someone on the panel who has heard about our case. This happened to me with several jurors in my last trial. The jurors who had heard about the incident were reluctant to really say everything they remembered hearing, but I really had the feeling that they identified with whichever group they heard the story from (ie people who heard about the story from the defendant’s family and friends seemed to believe his story and vice versa).

The court played it safe in my trial and struck anyone who knew any specific information about the case – and according to this new study about gossip, it was the right thing to do.

The study essentially indicates that preconceived notions about someone will affect the way one deals with that person, even if the evidence shows that the preconceived idea was incorrect. I think this could have some ramifications for juries. Maybe a juror will stick to the story he/she heard, even after hearing evidence at trial that may lead to another conclusion.

This may spread even beyond what jurors heard about particular cases. Maybe jurors who hear that a particular attorney is a total bastard won’t come around even after a week of trial shows that the attorney is a genuinely nice guy. Maybe jurors who believe that medical malpractice lawsuits cause nothing but trouble won’t be able to come around even after hearing evidence of a doctor who made a huge mistake that cost someone dearly. The possibilities are endless.

You can’t always strike everyone you want to – but when you’re challenging potential jurors, keep this study in mind.

(Howard Zimmerle is a personal injury lawyer in Rock Island, Illinois)

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Verdict makes news – again

I blogged the other day about a jury trial I won in Henry County Illinois. There is another article about the trial and verdict in the Kewanee Star-Courier today. This one doesn’t need registration, but it has been very difficult to load for some reason.

(Howard Zimmerle is a personal injury attorney in Rock Island and the Quad City area).

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Jury selection – do I pick more men or women?

Picking a jury is one of the most discussed and agonized-over topics in all of trial practice. One of the big questions is demographics – what types of people should be on the jury?

I’ve always believed that pure demographics (age, sex, income, race) don’t help much, if at all, when picking a jury. Many lawyers feel differently. For example, some plaintiff’s lawyers believe that a jury made up of women will be more sympathetic to the plaintiff’s side.

This probably isn’t true. From the PsyBlog comes a review of thousands of studies about the differences between men and women. Turns out, men and women think pretty much the same way. The lesson – when picking a jury, don’t look at sex/gender, but look at the specific attitudes of the individual.

(Howard Zimmerle is a Rock Island accident attorney)

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