Posted by Bill Sandweg on 28 April 2021.
“Blame the patient” is Play #2 in the medical malpractice defense lawyer’s playbook. Play #1, of course, is “Deny, deny, deny.” “Blame the patient” is #2 because it is so effective. It plays into the human nature of the members of the jury.
Psychological studies have shown that jurors, like all the rest of us, try to make sense of the world around them in a way that minimizes psychic distress. This has profound implications when jurors hear a medical malpractice case.
The plaintiff, the patient, is asking the jury to find that the doctor or the hospital made a mistake that caused injury, or sometimes even death. It is upsetting for jurors, or for any of us, for that matter, to believe that doctors or hospitals make mistakes that kill and injure people. It is much more comforting to believe that they do not and that we can trust doctors and hospitals to get it right when they treat us or our families.
So how to explain what happened to the plaintiff? This is where “blame the patient” comes into play. If a juror can conclude that the patient acted inappropriately in some way, did something the juror tells himself he would never do, then whatever happened wasn’t really the fault of the doctor or hospital. Whatever happened to the patient would not happen to the juror because the juror would never do what the patient did. Now the juror has a comfortable way to view what happened. Now the juror can decide the case in a way that won’t cause future worry about malpractice.
Some of the stories jurors tell themselves are truly mind-boggling. For example, patient is sent home from the emergency department after coming in with a complaint of chest pain. Patient arrives home and shortly after has a fatal heart attack. Many jurors will refuse to find for the patient’s family on the grounds that the patient should never have gone home at all. The patient should have known something was wrong. The patient should have gone directly to another hospital and been checked out. The juror tells himself he would never have gone home. Therefore, the patient did not act reasonably in going home and his family should not win the case.
This theme repeats over and over: Patients should not believe what doctors tell them. The jurors tell themselves that they would have gotten a second opinion, which would have discovered the problem. The jurors tell themselves that, when told to come back next week, they would have come back the next day, which would have discovered the problem. Jurors tell themselves that they would have gone on line and researched the prescription ordered by the doctor, which would have discovered the problem.
All of these explanations are inconsistent with human nature. When dealing with doctors, we are sheep. We are afraid of our doctors. We are afraid they will be offended, if we question them or do not do as we are told. We obey our doctors. If the doctor says to come back next week, we don’t come back the next day. Pretty much no matter what happens, we figure the doctor knows best and we wait to return in a week.
If the doctor in the emergency room tells us our chest pain is nothing to worry about and we can go home, we are not suspicious that they missed something. Instead, we are happy. We are grateful for the good news that we are not going to die of a heart attack. We do not go to the next emergency department down the street. We go home.
These psychological defense mechanisms, which we all carry around with us, help explain why doctors and hospitals win 85% to 90% of all malpractice trials. Jurors want to do the right thing but human nature gets in the way and makes it difficult to find for the patient or her family. It is a difficult problem, which is made even more difficult by the fact that jurors don’t even realize there is a problem. Human nature is not going to change. A good trial lawyer needs to take this into account when selecting a jury and try to get one which will be receptive to the argument that the doctor or hospital made a mistake, which injured the patient.