News 08.11.21

The Death of Impartiality – “Dr. Death,” Reptilian Tactics, and Fighting Juror Bias

The show is meant to be evocative – to encourage an emotional response in its viewers by getting them to think that our medical system is unfair and just sees its patients as a means to a financial end. Yet, this theme is not exclusive to a writers’ room at NBC; plaintiff’s lawyers seeking to take advantage of a reptilian response in jurors are using similar themes at the core of their trial presentation. Media like Dr. Death chip away at the jurors’ appreciation of the tireless resolve and selflessness that go into being a medical professional, leading them to question the credibility and motives of medical professional defendants. Plaintiffs’ lawyers play into this theme – making their case less about the defendant and more about an indictment of the American medical system. Such a tactic is unfair and, if left unchecked, could have disastrous results for a medical defendant. It is up to a medical professional’s attorney to prevent plaintiff’s counsel from unfairly tipping the scales against his or her client, and there are a few strategies to keep in mind to ensure a level playing field at trial.

The key to defeating a reptilian approach to a medical negligence claim is to keep attention focused on the specific circumstances of the case – that way the plaintiffs’ attorney is forced to litigate the actual claim rather than resorting to irrelevant criticisms of our medical system. Maintaining focus will humanize a medical professional defendant, leading the jury to rightly consider the professional’s actions based upon the time and circumstance surrounding their patient care. Typically, this battle is fought through effective objections and limiting instructions at trial, each of which is meant to exclude inflammatory and prejudicial argument and lines of inquiry intended solely to cast the medical industry in a negative light. However, laying a foundation for these objections and motions in limine starts in discovery.

Plaintiffs will begin to build their reptilian arguments in written discovery, inquiring as to irrelevant topics such the for-profit status of a practice group or hospital, the cost of various surgical procedures, the revenue realized by the defendant professional or institution, and non-case-specific claims and complaints relative to the medical entity or practice group as a whole. Defense counsel must be prepared to meet these improper requests and lines of inquiry with strong objections meant to limit exploration of irrelevant, tangential, and prejudicial matters. Of course, this will require a working knowledge of local rules of evidence and procedure, as objections must be framed to ensure they will be defensible if challenged.

These tactics will continue at deposition, with plaintiffs’ attorneys using inflammatory and irrelevant inquires in an attempt to garner an emotional response from a medical professional. Usually, this will occur toward the end of a long and arduous video recorded deposition or maybe following a particularly tense and challenging line of questions. Plaintiff’s counsel will build pressure through stress, frustration, and fatigue, then twist the knife with provocative questioning meant solely to drive the witness over the edge into an emotional response. Anger will make a defendant appear defensive, frustration and impatience will make him or her appear arrogant, and any show of sadness or remorse may make him or her appear guilty. This strategy is particularly effective, as even the best factual answer to a question can be completely undermined if delivered via an emotional outburst on video. Defense counsel should be wary of this tactic and must prepare their clients for overly emotional and evocative lines of questioning. They must also be ready to use timely and appropriate objections to break up the flow of emotionally charged questioning and give their client time to think through the question. Breaks are also a must, as a well-timed five- or ten-minute coffee break can help recuperate a witness and reduce the pressure of the deposition.

Another common tactic used by plaintiffs’ attorneys is to notice the deposition of a “person most knowledgeable” or member of the accounting or financial staff for a practice group or medical entity. Plaintiffs’ attorneys will inquire as to the financial and business side of operations for the group or entity, seeking to create the implication that the defendant sees the patient only as a dollar sign. Plaintiffs’ counsel will also see such a witness as an easy target – as back-office staff usually have limited deposition experience and may not present as well as a more confident medical professional. Defense counsel must be ready to object to any such notice based upon its irrelevance and, if such a deposition should proceed, must also be ready to prepare and defend the witness for questions seeking to boil patient care down to a numbers game.

When a plaintiffs’ attorney is able to explore general, non-medical topics at deposition, defense counsel must be ready to re-examine the witness and create a record establishing just how irrelevant and unimportant these lines of inquiry are. A clear record establishing how little bearing plaintiff’s inflammatory, irrelevant questions will have on the core elements of plaintiff’s cause of action will go a long way to barring that line of inquiry at trial and may even aid in having certain witnesses barred in their entirety.

Ultimately, juror impartiality is at the core of our legal system. Yet, it can be hard for jurors to remain impartial in a world which so often seems unfair. Medical professionals have traditionally maintained a positive reputation among members of their communities, leading to jurors who are able to maintain impartiality and review the facts and circumstances of the case in deliberations. However, modern perceptions about the American medical system – particularly its cost – are eroding this impartiality, with media such as Dr. Death feeding into a growing bias against medical professionals. As a defense attorney, it is important to be cognizant of developing cultural and social viewpoints and to understand plaintiffs’ attorneys may use growing societal bias against your clients in order to protect your client and to ensure that they have the best defense possible.