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.