LNCtips.com: 5 Reasons Defendants Win

It's no secret that plaintiffs usually lose medical malpractice jury trials.  There are many reasons why physicians, nurses, and hospitals win when their cases are tried.  Let me tell you about five of those winning defense strategies.

Before we start, let me clarify the statement that plaintiffs usually lose in medical malpractice cases.  Statistics for trial verdicts that find for the defense (and thus against the plaintiff) range from 73% to 80%.  Here's another caveat. The following reasons for defense trial verdicts are observations derived from my experiences as a legal nurse consultant, not because of a scientific survey.

1) Defense attorneys have a better understanding of the medicine than plaintiff attorneys do.  This isn't always the case, of course.  Both plaintiff and defense firms hire experts and may use legal nurse consultants.  But only defense attorneys have ready access to people intimately involved in the day-to-day medical aspects of the case - the defendants.  Sometimes plaintiff attorneys fall in love with a case that has the potential for high awards due to catastrophic injuries.  But if the medicine doesn't support the allegations, juries find for the defendants as occurred in two trials in which my employer attorney was involved.  The first case involved a plaintiff who lost most of his penis due to flesh-eating bacteria.  The second involved a plaintiff who had all four of her limbs amputated due to sepsis.  The link between the defendants' actions and the plaintiffs' injuries just wasn't there.

2) Defendants usually stick together.  Many staff nurses are convinced that physicians or their employers will throw them under the bus in a medical malpractice suit.  While I know that finger pointing happens, it's not a good defense tactic.  Why is that?  If there are two (and especially if there are more than two) defendants, juries find it hard to believe that each defendant was negligent and caused the patient's injuries.  If defendants point their fingers at each other, it helps the jury connect the dots.

3) Some plaintiffs are unsympathetic.  Plaintiffs may have traits that juries dislike, such as drug or alcohol abuse.  Or plaintiffs may have been non-compliant with the medical regimen, thereby contributing to or complicating their injuries.  On the other hand, America consistently ranks nurses, doctors, and other health professionals as some of America's most trustworthy professions.  Juries may find it difficult to believe that such professionals were negligent so will give the healthcare members the benefit of the doubt. 

4) Medicine is complex.  Juries understand that medicine is complicated, and that there is often more than one way to treat certain diseases and injuries.  Juries also recognize that the judgment of healthcare workers can sometimes supersede a policy or procedure.

5) Documentation (or lack of it) doesn't always influence juries.  Nursing schools have drilled the phase, "not documented, not done" into nurses' brains.  However, juries pay just as much or more attention to nurses' spoken testimony.  I was shocked when I sat on a jury for a federal lawsuit involving sexual discrimination.  None of the other jury members gave a hoot about written documentation.  In medical malpractice cases, jury members may think it was more important that healthcare workers provided care than it was to write about it.

Does this mean that the deck is stacked against plaintiffs?  Not at all, because many cases are settled before they go to trial.  Settlements are always a win for plaintiffs.

...Katy Jones