Beware of new trends in professional negligence litigation

Orthopedic surgeons must protect themselves from unfair verdicts.

By Lawrence H. Brenner, JD, and B. Sonny Bal, MD, JD, MBA

An examination of recent trends in professional liability litigation shows a subtle but dramatic shift in favor of plaintiffs. This shift is partially reflected in the recent rulings of the supreme courts of Georgia and Illinois; as readers may be aware, both courts have struck down legislatively-prescribed limits on monetary recovery in medical malpractice litigation as violative of the respective state constitutions.

To investigate the above phenomena, we present below a more nuanced but potentially influential shift in the way that plaintiff’s attorneys are advocating on behalf of their client. This movement probably began several years ago, with the publication of the book titled Rules of the Road: A Plaintiff Lawyer’s Guide to Proving Liability.

B. Sonny Bal

Lawrence H. Brenner

Rules of the Road model

The premise of the book is that juries can understand the basic rules of medicine in much the same way that they understand rules that govern other daily activities, such as driving a car. This is a departure from the traditional view of professional litigation, where expert witnesses were deemed essential to explain to the jury the underlying technicalities of the case, and establish a professional standard of care that the jury could apply.

While the Rules of the Road model does not dispense with expert testimony altogether, its basic theory is that a plaintiffs’ lawyer will anchor his or her case in the basic rules of medicine that govern the quality of health care services and patient safety. Properly framed, such rules should be recognizable by lay juries who presumably understand the fundamental societal values of quality and safety.

A surgical example of the application of this model would be a case premised upon an avoidable surgical error, such as a sciatic nerve injury during a routine total hip replacement (THR). As an illustration, the plaintiff’s attorney might establish the following rules to guide the logic and reasoning of jurors:

• Carelessly performed THR can harm or even kill a patient.
• Accordingly, a surgeon needs to be diligent and prudent in performing THR.
• A diligent surgeon will be aware of the potential complications of THR, such as a sciatic nerve injury.
• A diligent surgeon will therefore take measures to avoid these complications.

Reptile brian

Rules of the Road was recently followed by a book written by authors David Ball, PhD, one of the country’s most influential jury consultants, and plaintiff attorney Don Keenan. Their book, Reptile: The 2009 Manual of the Plaintiff’s Revolution, relied heavily on the work of Yale Medical School, and National Institute of Mental Health physician and neuroscientist, Paul D. MacLean.

MacLean’s work focused on three parts of the brain. The authors stated they particularly focused on the part he called the Reptilian Brain — “More sedately known as the R-complex, it’s the oldest part of the brain.” They concluded that this primitive part of the brain can affect jury behavior, since one of our most primitive instincts is to avoid danger. They stated, “It’s the primitive part of the brain that controls decision-making. It’s the Reptile, even more primitive than the emotional part.”

They conducted research on a wrongful death case involving alleged medical negligence. The focus of the research jury was to render a verdict taking into account only what would be good, vs. bad, for the community. The jury reported the following balancing of factors in deciding whether to give money to the plaintiff:

Bad effects of giving money: It would make doctors leave the state; increase insurance rates; make doctors more indecisive and make doctors run unnecessary tests.

Good effects of giving money: It would tell other doctors to be more careful; make the community safer (and feel safer) because doctors are accountable; put the public on guard so that they’ll ask doctors more questions; get rid of bad doctors; make doctors set better, clearer standards; make for better care in the future; and make doctors run all the necessary tests, whether or not they want to.

The focus juries were then asked to rely on these two lists to come up with a “selfish verdict.” The result was that the focus groups decided the community would be safer with a plaintiff’s verdict. The authors reasoned that this jury decision was grounded in primitive instincts related to repelling danger and protecting the community, and these instincts trumped any emotional considerations that might have favored a defense verdict.

Avoidance instincts

The notion of appealing to the primitive instincts of humans derived from basic neuroscience research was then applied by the authors to develop a possible trial strategy, where, by focusing on risk, and danger, the primitive danger-avoidance instincts of jurors could be triggered and used to advantage. Thus, the plaintiff’s attorney would attempt to have the defense admit, “… prudent doctors don’t expose anyone to unnecessary danger.” This assertion, which is a truism of medicine (do no harm) could, in turn, could be derived from a number of alternatively-worded scenarios with which a physician-defendant would have to agree, including:

• There is no such thing as a standard of care that allows a doctor to needlessly endanger his/her patient;
• To achieve a desired benefit, a doctor must expose a patient to no more danger than necessary;
• If there is a safer way available, the doctors must choose it; and
• All else being equal, the doctor must select the available choice that puts the patient in the least danger.

To get the defendant-physician admit to the above, the authors also provided sample cross-examination questions to be posed to the defendant and his experts at deposition and trial. In the questions that follow, for example, see how the logic and reasoning follow, as each question pretty much has to be answered in the affirmative:

Q: Physicians are not allowed to needlessly endanger patients?

A: Correct.

Q: That’s the standard of care?

A: Yes.

Q: When diagnosing or treating, do doctors make choices?

A: Yes.

Q: Often, several available choices can achieve the same benefit?

A: Yes.

Q: Sometimes, some of those are more dangerous than others?

A: Yes.

Q: So you have to avoid selecting one of those more dangerous ones?

A: Correct.

Q: Because that’s what a prudent doctor would do?

A: Yes.

Q: Because when the benefit is the same, the extra danger is not allowed?

A: Yes.

Q: The standard of care should not allow extra danger unless it might work better or increase the odds of success?

A: Yes.

Q: So needless extra danger violates the standard of care?

A: Yes.

Q: And there’s no such thing as a standard of care that allows you to needlessly endanger a patient?

A: Yes.

These strategies and efforts by plaintiff’s attorneys play upon innate, protective reactions of jurors who reflexively want to maximize the good of the community. As such, these trial tactics represent a powerful tool that may have a substantial impact on the nationwide professional malpractice experience, especially in cases where evidence of medical negligence might exist, but jurors may have otherwise sympathized with the physician defendant.

Finding for the physician

Phillip G. Peters Jr., JD, professor of law at the University of Missouri – Columbia, in an article titled “Twenty Years of Evidence on the Outcomes of Malpractice Claims,” noted, “The widespread assumption that the civil justice system routinely produces irrational or unfair outcomes is not supported by the evidence … To the extent that litigation outcomes and peer-assessments diverge, litigation outcomes are more likely to favor physicians than patients.” He also noted that physicians win 50% of the trials in cases with strong evidence of medical negligence.

If Peters’ well-researched article is correct, it is likely that the books Rules of the Road and Reptile will have their greatest impact on those cases that currently result in defense verdicts, even though the evidence of medical negligence is strong. Where juries may have previously given the defendant physician the benefit of the doubt, trial tactics may appeal to their primitive instincts to avoid danger, and thereby benefit their community, even if it means a large payout of money to the aggrieved plaintiff.

The above analysis provides only a snapshot into a subtle shift in trial tactics that may be a harbinger of an increased incidence of jury verdicts favoring plaintiffs. For any orthopedic surgeon interested in understanding these subtle but important shifts in plaintiff’s advocacy, these books provide invaluable insight into trends in malpractice litigation advocacy.

Achieving fairness

In the final analysis, the civil justice system is about achieving fair and just results. Physicians and surgeons often find themselves in difficult predicaments that do not lend themselves to a simple risk-benefit analysis. The purpose of our civil justice system is to fairly and justly allocate losses when a patient is injured. In a classic article that appeared in the Harvard Law Review in 1972, Professor George Fletcher argued that the purpose of private litigation should be on achieving fair results (fairness) as opposed to social utility (benefitting the community).

As a defense strategy to counter emerging trial tactics of plaintiff’s lawyers, juries must be reminded that their purpose in a democracy is to achieve fair verdicts regardless of the impact of such verdicts on the community. Likewise, physicians and surgeons need to be reminded that an essential component of fairness is providing quality care and being diligent in protecting their patients. Plaintiffs’ attorneys need to be reminded that the practice of medicine involves a complex array of decisions and that modern medicine is defined by uncertainty.

In sum, Both Rules of the Road and Reptile provide invaluable insight into how an orthopedic surgeon can protect himself/herself from unfair verdicts. It is also a reminder that perceived carelessness in the occurrence, detection, and management of surgical complications are more likely to lead to plaintiffs’ verdicts in the future.

References

• Ball, D., Keenan, D. C, Fitzgerald, J. E, & Johnson, G. C. (2009). Reptile: The 2009 manual of the plaintiff's revolution. New York, N.Y.: Balloon Press.
• Friedman, R. & Malone, P. (2006). Rules of the road: A plaintiff lawyer’s guide to proving liability. Portland, Oregon: Trial Guides, LLC.
• Peters PG. (Twenty Years of Evidence on the Outcomes of Malpractice Claims Clinical Orthopedics and Related Research, vol. 467, no. 2, February 2009)
• Harvard Law Review in 1972, Professor George Fletcher titled “Fairness and Utility in Tort Theory,”

• B. Sonny Bal, MD, JD, MBA, is associate professor of hip and knee replacement in the department of orthopedic surgery, University of Missouri School of Medicine. Lawrence H. Brenner, JD, is on the faculties of orthopedics at Yale University and the University of Southern California and practices in Chapel Hill, N.C. Address all correspondence to Brenner at lb@lawrencebrennerlaw.com.