Your Practice Made Perfect
This podcast series provides support, protection, and advice for today’s medical professionals. Brought to you by SVMIC, a mutual insurance company that is 100% owned and governed by our policyholders.
Feb. 15, 2019
Episode 051: Keeping Calm in the Courtroom
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Speaker 1: You are listening to Your Practice Made Perfect, support, protection, and advice for practicing medical professionals brought to you by SVMIC.
Brian: Thank you for joining us today. My name is Brian Fortenberry and on today's podcast, we have the fantastic opportunity to speak to a trial consultant and all that goes into helping prep people for trials and understanding how juries work and all of that. Joining us today to help us navigate this is Dr. Jill Huntley-Taylor. Welcome!
Jill: Thank you. It's great to be here.
Brian: Well, thank you for taking the time to join us because this is such an interesting topic to me. It really is because trying to understand that situation and the minds of physicians and juries and how that whole process works, I think that's gonna be very beneficial today to our listeners.
Before we get started though, tell us a little about yourself. Tell us about your background.
Jill: Sure. I am a trial consultant and I have a Ph.D. in social psychology and I've been a trial consultant with Dispute Dynamics for 20 years. As a trial consultant, we conduct mock juries, mock trials before trial. We work with witnesses including doctors to prepare them to testify for depositions and for trial testimony and we help select juries and work with attorneys in preparing their opening statements and selecting the actual jurors who are gonna be deciding those cases.
Brian: The interesting thing to me just as a lay person that doesn't necessarily understand all the intricacies of the legal system and all that happens, the first thing that comes to my mind is no one that ends up in a trial wants to be there.
Brian: Nobody woke up that day and went, I can't wait to either be a defendant obviously or really even a plaintiff because if you're a plaintiff, something has wronged in your life or you have been wronged in some way, so no one is excited about it and I imagine it is an unusual circumstance to be in for all. Therefore, your nerves are crazy and you don't know what to expect. To have someone like you to help guide through that process has got to be very, very valuable. Is there anything that surprises you about how juries perceive medical professional liability cases? Is there anything in your experience that surprises you about how they look at that?
Jill: I'd like to say that nothing surprises me after 20 years, but there's always a surprise. We try to actually avoid surprises and that's part of doing jury research is to before you even get to a real jury, it's letting mock jurors decide a case, talk about a case, look at the issues. What are they gravitating towards? I think there always are a few little surprises, things that they latch onto, things that they really wanna spend their time focusing on that the trial team and the medical team didn't necessarily pay attention to in advance.
Brian: In those scenarios, how in the world do you prep a position or any one to expect the unexpected? What do you do to help make them comfortable in that space?
Jill: Well, there are certain things that we know that jurors expect. Going into trial and any situation, for the doctors and for the trial team, we can look for and build the case around meeting those jurors' expectations. I like to break it down to, I use this acronym, MEDIC, and it's kind of an oversimplification but it's one that's hopefully memorable. These are the expectations the jurors have. M, medicine. E, education. D, documentation. I, informed consent. And C, caring. All of those things build up the expectations that the jurors have for what happened in this case of what the doctors or the medical team did or didn't do.
Brian: I like that acronym a lot because that seems to encapsulate a lot of those things that, like you said, just the general person says was it documented? Was there an informed consent? Were they caring in my particular situation? When you look at these, what are the things that are most problematic often for physicians? Would you say, is it the medicine? Is it the education? Is the informed consent or the caring? What is the one that really often jumps out of uh oh, this is gonna be a big hurdle for us?
Jill: I would say three of them and I don't mean to not pick one but the education piece can often be a problem. The education, really, I'm trying to fit the acronym MEDIC, if I had an extra C, I would call it communication. But it is how well informed, how upfront, transparent is the medical staff with the patient? A lot of times, it's the failure to be upfront, to disclose, to explain that jurors can fault a medical team for. Let's say, for example, we had a case where a surgeon was trying to remove a tumor and in the process of trying to remove that tumor, cut into the pancreas of the patient, cut a piece of the pancreas.
That was the claim for malpractice and the jurors cared about that, but what they cared about more was that the doctor did not clearly explain afterwards to the patient what happened, that there was this complication and how to handle it. The jurors were much more focused on that after care or the failure to follow up and explain and educate the patient than they were with anything that actually happened in the medicine part of it.
The other one that comes up time and time again is documentation. At trial, of course, documents are evidence. Anything that's either in the documentation or not in the documentation is going to become an issue at trial. There are plenty of times where it's a he said, she said situation about whether something happened. For example, there was a safety precaution that the defense wanted to say was taken in the care of a nursing home patient and the plaintiff said that precaution was not taken. Okay, let's look at the documentation. What's in there? Is it there or isn't it? And it wasn't there.
If it's not there, it didn't happen. That's how jurors take documentation. I'll give you a good example on documentation, too. Documentation can be a really powerful tool for the defense. For example, we had a case of a pediatrician who was accused by the plaintiff of just looking at a dropdown menu electronically and just checking boxes.
Instead of checking boxes and just saying that she wasn't really spending the time and caring for the patient, she wasn't really doing her job. What we said is let's look closer at the documentation here and we looked at the documentation and it appeared that the doctor actually took pretty copious notes in addition to checking boxes and those notes suggested a number of things.
Number one, they suggested that the doctor was spending time and number two, that the doctor was being very attentive and caring. The documentation has its kind of normal objectives of what happened in the care but it also has this other arm of how caring and concerned was the doctor.
The last one is the caring. This is probably the one that is the most important because at the end of the day, the jurors are looking at the doctor, they're looking at the care that the doctor provided from the moment they met the patient, to the verdict.
They're sizing up this doctor. Is this someone that I would want to care for me or my family and they wanna know how did they treat the patient, how are they as a person, how did they behave around the courtroom, how are they on the stand? It really cuts across the board and a caring doctor is exactly what jurors expect the doctor to be.
Brian: That makes all the sense in the world because you can do everything right but if you come across in that arrogant, negative, not caring presence, then that's going to automatically rub not only your patients the wrong way but obviously the jurors the wrong way as well.
When you talk about documentation, one of the things that I thought about was, as you said you hear so often, if it's not documented, it didn't happen. Couple of things, one, that really, I would think, could be almost your best witness of what happened at that time if done well but also could be the worst witness against you if not and I would imagine, too, trying to go back after the fact and change documentation or tamper with the medical record, major no no, correct?
Jill: Yeah, absolutely and you're right. I mean, if there is something in the documentation that is an opinion or a thought that is just jotted down by any member of the staff, you can imagine it can be put up on screen in front of the jury for the entirety of the trial and over and over again in whatever that little thought was or critique of another doctor or whatever it is, it can be really bad.
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Brian: Now, in today's society, obviously we question people a lot more and there's a lot more knowledge, there's a lot more information out there on the internet. Are physicians still given that elite, high esteemed status that say they were with my grandparents 60, 70 years ago, or not? How is that affecting trials these days?
Jill: It's interesting because I think there is certainly a lot more information out there and jurors, I call them dot com doctors, right? You get a symptom, you google it, you figure out what's wrong with me. Do I have the flu or do I have a cold? Am I dying or am I just getting over a little something?
They go armed with this information when they go, eventually, if they do go to see a doctor. But doctors are still held in high regard. There's data out there that shows how there's been a great erosion of trust in our society of lots of different institutions, not only the historically not trusted jobs like lawyers and politicians, but also newscasters and churches and there's been this erosion of trust.
Jill: But doctors and nurses still maintain a position of trust with most people but that also means they have high expectations for them. If you are on a pedestal, then you also have a lot of expectations because if you fall off, you have a long way to fall. Jurors are expecting more of doctors these days I think in one part because of how much information they have access to. They still want the doctor to be smarter, know more than them. If they come to the doctor with all the information they googled, the doctor should at least know that much.
Brian: Right. Exactly. I would think because of that, it's gotta make the doctors jobs' more difficult because you're having these people that are coming in that, like you said, one, are informed. The question then becomes are they appropriately informed or inappropriately informed?
Jill: Yeah, the expectations are that the doctor and the patient are gonna have more of an exchange about these things and I think that probably feels really different to a lot of doctors, but it can be a really helpful thing when it gets to trial because patients who are informed and active participants in their medical care are empowered. We see empowered plaintiffs, empowered patients, empowered plaintiffs as a really benefit to the defense of any medical malpractice case. Someone who had a role in all of the healthcare that they received and the decisions about their healthcare is gonna be a better plaintiff for the defense in the end.
Brian: Has there been a seismic change in how jurors perceive this? How do they think today? Are they using more technology now? Are they using just their personal experiences? What is driving their decisions other than obviously the evidence, but we all are gonna bring some baggage into the room with us, not only the way we hear things and perceive it but when we get to the jury room of deliberation. How are they making those decisions these days?
Jill: I don't see a big difference in how they've made those decisions over time. Jurors do bring their own experiences. Sometimes people call that baggage, but it is just human nature to bring your own experiences to trial. That's why it's important to understand what that baggage, what those experiences and those attitudes are before you even decide who's gonna be on the jury in the first instance or who's not gonna be on the jury.
Brian: Do you go through the, I guess it's called the voir dire, process of whenever they interview the jurors and things of that nature? What helps make a decision on who's acceptable and who's not really?
Jill: We usually look at two different categories of things that we're looking at in each juror. One is how much do we think this juror is going to be favorable or biased against our client and the other is how much of a leader we think the juror's going to be. Those two things have to be looked at together. What makes someone more or less biased against your client in your case are people who have, again, attitudes and experiences that are more akin to what the plaintiff's claiming. If they've gone through something like the plaintiff has gone through.
You wanna get at have you ever experienced a doctor who has let you down or a medical professional who failed you or a family member? How do you feel about, are doctors overpaid? All these kind of attitudes that might come into play. But you're also looking at how much do you think this person's going to play a role of leading on the jury because someone who has really negative experiences and attitudes might be someone you have to live with because you only get so many strikes. But if they're going to be a big leader, then that's a much greater concern.
Brian: The thing, too, is I would assume in that process is knowing what questions to ask certain jurors to be able to get that information out of them, to know when this is worth a strike or not. I guess you really have to understand the case and what it's about and some of the points to know how to help process those questions, correct?
Jill: Yeah. When we conduct jury research, which is a mock trial, one of the things that we try to come out of the mock trial with is a sense of, from the science of it, which jurors, which attitudes, which backgrounds led that person to be more of a plaintiff juror or a defense juror?
We come into the jury selection armed with that information and then we just use our collective experience with these kinds of cases as to what we're looking for and what kinds of questions will elicit the answers we need to make a judgment about which to strike.
Brian: Sure. Is there also a process of preparing the physician? Tell us about how you help prepare those physicians?
Jill: Testifying is difficult for anyone and being accused of some wrongdoing in your profession is a really difficult place to come into a situation of testifying. A lot of what we do is to work with a witness on overcoming some of their psychological hurdles to giving what we call effective testimony.
Sometimes there's a feeling of anger, sometimes there's a feeling of guilt because sometimes there is a bad outcome. It doesn't necessarily mean that there's a bad doctor, bad act if there's a bad outcome. It does not mean that at all. But there's overcoming some of the psychological hurdles and really just preparing the doctor for what to expect.
What to expect in terms of the questions that they're going to hear from the other side, what to expect in terms of what the jurors are gonna be looking for, and you mention about their behavior around the courthouse and the jurors are sizing up these doctors throughout the trial, not only when they're testifying but also just what kind of person is this?
Is this the kind of person who holds up indoors? Is this the kind of person who is joking around and playing on their cell phones? What kind of person is this? Is this someone that I want to seek for care? There's a lot of factors that go into preparing a doctor for testifying and being part of a trial.
Some of them are just really psychological and others are a much more just preparation, being ready.
Brian: As we get ready to wrap up our discussion today, for those policyholders out there or potential policyholders or medical professionals that might just be listening to our podcast today, what is some of the advice that you would give them?
Jill: If you go back to that MEDIC acronym, some of those things, if they're done in advance, you may never even get sued. If you are a caring, connected doctor who is educating and informing your patient and your patient is making informed decisions that are documented, it may never end up in a lawsuit in the first instance.
But, we know litigation happens. People get sued and it's of no fault of their own. If you make sure that the staff is communicating with one another, we didn't really talk about this, but this idea of a medical team, jurors see a medical team and they want there to be a continuity of care and communication between members of that team.
They don't want to see doctors pushing responsibility onto others or washing their hands of things. Getting back to the expectations of the jurors in either warding off a lawsuit or being in a better position if there is a lawsuit, it is going back to that MEDIC, being transparent, making sure things are documented, communicating with the patient.
Even if it's just at the end of a patient visit, asking the patient, is there anything else? Is there anything you don't understand? Are there any questions? And following up with patients. Also just the documentation between doctors and other members of the medical team.
There's a lot of things that can be done to ward off litigation and to get a better result in litigation. I guess I'd like to end on caring because I mentioned that the doctors and medical professionals are on a pedestal and that is because people believe that medical professionals go into those fields because they like to help and they want to heal and they care.
Even when there's a bad result, the jurors expect caring and they don't want to see the medical team running away from a bad result. They want them to care and caring does not mean an admission of wrongdoing. It doesn't mean wrongdoing at all. It just means you're human. Jurors really do expect and they look for that when they're evaluating a doctor.
Brian: To me, compassion and caring has got to be at the top of my list because at the end of the day, if something is going wrong or if I'm obviously there for a reason seeing this physician, I want to feel like they have my best interest at heart and that what bothers me is bothering them.
Brian: As well. You get some grace there, right?
Jill: Absolutely. Jurors do care about whether this was a good person or not. That is something that they evaluate. It matters to them.
Brian: I tell you, this has been extremely informative and educational for me and our listeners. Thank you so much for taking the time to be here and sharing with us today.
Jill: Thanks for having me here.
Speaker 1: Thank you for listening to this episode of Your Practice Make Perfect with your host, Brian Fortenberry. Listen to more episodes, subscribe to the podcast, and find show notes at SVMIC.com/podcast. The contents of this podcast are intended for informational purposes only and do not constitute legal advice. Policyholders are urged to consult with their personal attorney for legal advice as specific legal requirements may vary from state to state and change over time.
The contents of this Podcast are intended for educational/informational purposes only and do not constitute legal advice. Policyholders are urged to consult with their personal attorney for legal advice, as specific legal requirements may vary from state to state and/or change over time. All names have been changed to protect privacy.
About our Guest
Dr. Jill Huntley Taylor
Dr. Jill Huntley Taylor is a Director with Dispute Dynamics, Inc. and heads the firm's Philadelphia office. She joined Dispute Dynamics in 1998. Dr. Huntley Taylor has worked on behalf of her clients in courtrooms throughout the country, alongside some of the best lawyers and law firms. Her experiences include case theme and strategy development, jury research, assistance with jury sel[MSF]ection and voir dire, witness preparation, assistance with opening statements and closing arguments, development of juror profiles, shadow juries, and juror interviews. Dr. Huntley Taylor attended Claremont Graduate University in Claremont, California where she earned a Master of Arts and a Doctorate in Social Psychology. She conducted her dissertation research on the application of the story model to civil juror decision-making.
About our Host
Brian Fortenberry is Assistant Vice President of Underwriting at SVMIC where he assists in evaluating risk for the company and assisting policyholders with underwriting issues. He has been involved with medical professional liability insurance since 2007. Prior to his work at SVMIC, Brian worked in the clinical side of medicine and in broadcast media.