By Marco Spadacenta

Under “normal” circumstances, when a healthcare provider is sued for alleged medical malpractice, it begins an emotional journey the provider wants to end as quickly and favorably as possible. In the era of the COVID-19 pandemic, medical malpractice suit challenges have been exacerbated by delays in proceedings, resulting in many more months or years on this emotional roller coaster to resolution.

In addition, those providers who seek their day in court may encounter social shifts in jury predisposition. We are witnessing the politicization of medicine being played out on social media platforms and in the debates on vaccination/mask mandates, potentially eroding trust in medical science in general, a collateral consequence of which may be jurors who are predisposed to skepticism of healthcare providers and medical experts in the civil court setting. More than one in three U.S. physicians will face a medical malpractice lawsuit in their careers. The evidence also suggests that advanced practice clinicians, such as nurse practitioners, whose role is growing within the U.S. primary care workforce, may face an increase in medical malpractice claims. Therefore, healthcare providers may benefit from staying versed in the following key shifts in medical malpractice litigation.

Demographic Shifts Change Courtroom Dynamics

As the U.S. population ages, we see a seismic shift in the profile of the typical jury. More than half of Americans are now Millennials or younger (Gen Z). Members of the Silent Generation, those born between 1925 and 1945, and raised during a period of economic depression and war, are diminishing dramatically. No longer are juries populated with people from a generation that was confronted with and

overcame such arduous circumstances. As the population shifts toward these younger generations, so must the litigation strategy shift to account for their views.

In the context of preparing to defend a medical malpractice action, the defense team must evaluate whether juries will not only consider the healthcare provider, attorney, and medical experts to be skilled, experienced, and knowledgeable, but also whether these participants are reflective of the community, relatable, and not appearing out of touch with the modern-day juror. In other words, will these members of the defense team present in a trustworthy and credible way to today’s juries? All these factors must be considered when assembling the defense team and preparing a defense strategy.

Medical Mistrust Meets Misinformation-Inspired Mistrust

Whether derived from actual historic experiences or swayed by social media opinions, distrust of healthcare providers by some members of the public has grown significantly during the pandemic. For better or worse, jurors will bring their prior experiences and perceptions with them into the courtroom.

With the public mistrust of medical science surging, the paradigm may have shifted. We no longer see the “halo effect” (a type of cognitive bias in which our overall impression of a person positively influences how we feel and think about their character) that we witnessed during the latter half of 2020, stemming from our admiration for healthcare providers battling COVID-19. To the contrary, the current public mistrust may be manifesting itself at trial in a “horn effect” (a type of cognitive bias in which our overall impression of a person negatively influences how we feel and think about their character). Juror mistrust of medical science may manifest itself via “jury nullification,” defined by the Legal Information Institute as “a jury's knowing and deliberate rejection of the evidence or refusal to apply the law either because the jury wants to send a message about some social issue that is larger than the case itself, or because the result dictated by law is contrary to the jury's sense of justice, morality, or fairness.”

The defense team must take measures to combat jury nullification when preparing their trial strategy and focus the jury back on the reliable science of medicine as it applies to the matter before them.

Trial Delays Turn Attention to Alternative Dispute Resolution

The volume of backlogged cases is staggering. Studies indicate state and local courts across the U.S. saw their already difficult-to-manage case backlog increase by approximately one-third as a result of the global pandemic.

The “Great Resignation,” a.k.a. the “Big Quit,” has also impacted the civil litigation field. Continued departures of seasoned trial attorneys, judges, claims professionals, and others reaching retirement age and/or making new life choices after some pandemic-inspired reflection have also added to the challenges of defending a medical malpractice suit.

Given these challenges, there is a growing movement for alternative dispute resolution (ADR), such as mediation, when warranted by the facts and circumstances of the matter at hand and by the desire of the healthcare provider to bring resolution to a lingering claim, allowing them to return to caring for patients free from the burden of an unresolved claim.

ADR presents certain advantages. It is confidential, less expensive, can be scheduled far more quickly, and is less time consuming. It also spares the parties at least some of the upsets and disruptions a trial may impose. Nonetheless, since no agreement can be made without the express consent of the parties, mediation outcomes are completely controlled by the participants, not by a judge or jury. The major disadvantage to resolution at mediation is that regardless of the merits of their case, the parties relinquish their day in court. However, since resolution at mediation is voluntary, the healthcare provider does not surrender anything by simply agreeing to participate.

Unless court-ordered, pursuing resolution through ADR, such as mediation, should ultimately be the healthcare provider’s decision in consultation with their counsel and carrier. A good medical malpractice carrier will support the healthcare provider’s desire to vigorously defend the care they provided their patient, provide a strong defense, and effectively prepare the provider for trial.

Social Inflation Impacts Jury Awards

The average cost to resolve a claim (severity) has been rising for decades. In 2021, the average cost to resolve a claim handled by The Doctors Company increased 61 percent to $115,000, compared with $70,000 in 2007. Some of the major factors

driving social inflation in the U.S. today include the erosion of tort reform, litigation funding by plaintiffs, distrust of corporations, and large verdicts.

Over the past decade-plus, we have witnessed, successful attacks on tort reform measures previously passed by various states. This particularly impacts medical malpractice, as many of these measures were specific to these types of claims. These attacks on tort reform continue in some states to this day.

Additionally, lawsuits are expensive. Plaintiffs are much better funded and more willing to spend greater amounts to “work up” their cases than ever before. This results in the need for greater expenditures by the defendants to counter plaintiff spending. Like it or not, large healthcare provider groups or corporations are often portrayed as having “deep pockets” and as prioritizing “profits over people.” This negative portrayal may lead juries to ignore the care given by individual healthcare professionals and award large sums to plaintiffs because “the corporation has plenty of money” or to “send a message” to the corporation. The defense team must not only be aware of this risk but must develop strategies to counter it.

The multitrillion dollar deficit, the internet billionaire, the $500 million athlete’s salary, the $7 million price tag for a 30-second Super Bowl ad . . . The average American has been desensitized to the value of the dollar. Because the public has become accustomed to these astronomical dollar amounts, jurors may not be offended when the plaintiff demands exorbitant figures at trial, and in fact are more willing than ever to award excessive amounts.

While social inflation isn’t new, recent accelerations mean we’re now seeing larger jury verdicts as well as larger settlement demands. Whether this trend will dissipate remains to be seen, but it is a factor for healthcare providers to consider when they weigh their legal options. The defense team must form a comprehensive counter to plaintiff’s damage allegations and educate the jury on the true value of a dollar.

Strategies for Combating These Challenges

What can be done to mitigate the circumstances in this new era of delayed trials, juror mistrust, and social inflation? The following are some strategies to consider:

· Take advantage of pretrial preparation. The Doctors Company, for example, offers Surviving Litigation Seminars to its members as well as peer support throughout the litigation process.

· Retain an attorney who understands juror predispositions, is on board with selecting experts with whom jurors can identify, and reduces the risk of social inflation by presenting a comprehensive damages defense.

· If you prefer not to go to trial, consider methods of ADR, such as mediation, when warranted by the facts and circumstances of the matter at issue, to facilitate a speedier and perhaps more favorable claim resolution.

· Select a medical malpractice insurer with a proven track record of defending the practice of good medicine rather than turning toward the least expensive route to resolution.

Marco Spadacenta is the Senior Vice President of Claims, The Doctors Company and TDC Group

The guidelines suggested here are not rules, do not constitute legal advice, and do not ensure a successful outcome. The ultimate decision regarding the appropriateness of any treatment must be made by each healthcare provider considering the circumstances of the individual situation and in accordance with the laws of the jurisdiction in which the care is rendered.