Focus On

spring 2003 vol. 8 no. 4
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Defending Against Claims of Medical Negligence
By Mark S. Sobus and Dan Jacks

The patient is rolled in the door to your hospital. He is an older man who had a serious fall and is bleeding badly from the head. The nurses get what history they can, and the doctors set about repairing the injuries. As the work gets underway, it becomes apparently several instruments that hospital policy requires to be available for treating head injuries are missing. There is no time to stop and look for them; the situation is serious, so the team has to make do with what they have.
The doctors and nurses do heroic work. They stabilize the patient and move him for observation. The nurses’ notes are a little sketchy, but it is clear the patient continues to experience pain and disorientation. The nurses believe the man’s symptoms are consistent with his head injury so they don’t inform the doctor. Two hours after the patient was stabilized, he suffers a traumatic stroke that leaves him crippled for life.

The lawsuit is filed. At trial, the plaintiff’s attorney emphasizes the obvious errors made by the doctors and nurses, telling jurors: “If only the hospital’s staff had watched more closely, and all the instruments had been in place, they could have prevented this man’s stroke.” But you are confident in your defense. You have explanations for the minor shortcomings, and most importantly, you have retained the best medical and epidemiological experts in the country. They will let the jury know that the stroke was unpredictable and unrelated to anything the hospital did.

Despite excellent trial work and high quality testimony from your experts, the jury awards millions in life care and pain and suffering for the man and his family. The jurors aren’t particularly mad at anyone, but they believe the hospital and doctors could have done more. Why? Because every test wasn’t done, every instrument was not in place, and the nurses didn’t seek a detailed review of what they were observing. This jury says what many jurors say in these cases: “Negligence means you neglected to do something.” You wonder, “What about our experts? Wasn’t this stroke going to happen anyway?” But for this jury the case wasn’t about future possibilities, it was about what the hospital did and didn’t do. All they know is that the hospital made errors, and these errors directly preceded this man’s stroke. If pushed, the jury will say the hospital and staff contributed to the problem, but in reality, the issue of specific causation just isn’t where their concerns lie.

Duty, Breach...uh… Damages

Simply stated, jurors are very comfortable deciding negligence claims against doctors and hospital without directly considering the issue of causation, or at least not considering it the same way trial teams and medical experts do. Instead, jurors ask themselves whether mistakes were made, and whether the mistakes can be linked in a common-sense manner to the injury that occurred. Unfortunately, with the benefit of hindsight and the help of the plaintiff’s attorney, jurors find it exceedingly easy to be critical of the quality of care and to imagine different care would have led to a better outcome. Did the defendant’s conduct cause the harm? Maybe, and that’s good enough when the care wasn’t perfect. Essentially, once jurors conclude that the medical professionals or institution had a duty and failed to live up to it, a presumption of causation is formed. Many jurors will then skip right to damages without ever voicing a single word about whether the errors or omissions were the direct cause of the harm alleged.
Defending these cases will never be easy, but appreciating the way in which jurors evaluate the causation issue can help the trial team more effectively develop trial strategy and avoid pitfalls that undermine viable defenses.

Quality of Care:
The Linchpin to Verdict

In the face of a bad outcome, jurors want to know if everything possible was done for the patient. When they identify an apparent mistake or conduct that concerns them, they fixate on this information largely to the exclusion of all other evidence. In fact, when we test malpractice cases with surrogate jurors, we find that most of their time is spent discussing the mistakes/errors (i.e., the breach of duty), followed by a discussion of how the tragic event will affect the life of the plaintiff or his family. Finally, jurors apply the tragic nature of the case they have been asked to decide to their own lives, and they discuss their concerns about receiving care that may be substandard. The defense’s theory of alternative causation—many times the largest and most well developed part of the defense case—goes unnoticed as jurors ponder why the defense was ignoring the quality of care issues.
The authors saw this effect recently during a jury research project. The case involved many who had become paralyzed during a relatively routine procedure. The defense presented what was rationally a very compelling alternative cause argument. The argument provided a coherent and scientifically supported explanation for why the patient had a bad outcome, and why the patient’s outcome had nothing to do with the doctor’s actions. But during the jury testing it became apparent that jurors believe the doctor could have done additional tasks that would have totally eliminated the risk to the patient.

Thus, even though the doctor was operating completely within the standard of care for his profession, jurors believed he could have and should have done more. Did the doctor’s treatment cause the patient’s bad outcome? With very good reason, the defense would argue, “No.” But since the doctor didn’t do everything possible to “eliminate” the risks of the procedure, jurors blamed him for the bad outcome. Jurors said, “He [the doctor] took shortcuts he didn’t need to take.” It was on this issue where blame was assigned. The defense’s alternative theory of causation was wholly ignored. In fact, we learned during debriefings of the jurors that the defense’s immediate attempt to present an alternative cause was viewed as a callous disregard for the issue that was really most important in the case: Quality of Care.
Jurors’ ability to separate the issue of causation from quality of care is uncanny. Extensive interviews with real and surrogate jurors in medical malpractice cases consistently demonstrate that, once jurors become highly critical of certain aspects of care, their ability to fully entertain the issue of causation is undermined. Jurors want and need to know that medical institutions and professionals understand their worries and share the concerns they as potential patients have. Thus, spending time defending the quality of care is important and, in most cases, essential to getting jurors to listen to any alternative causation information the defense will present.
Convincing jurors that the care was appropriate and of high quality is understandably a challenge, and it is a challenge that cannot be met unless the treating professionals are prepared to support the defense team with high quality and empathic testimony at trial. The defense team can say the hospital cares about patients ad infinitum, but jurors will only believe this message if the nurses and doctors deliver it.

Far too often, preparing the nurses and doctors is an after-thought that follows the first round of depositions. At this point it is really too late. Developing a comprehensive theory of alternative causation is something that can happen over time, but making sure medical staff have a consistent story regarding the standard of care provided must happen right away.

We have found that conversations with the trial team that take place shortly after the event can dramatically influence the way medical professional evaluate their own conduct and the conduct of their peers. In many cases, nurses and doctors unknowingly sabotage the larger case, as well as their own case, as they deliver a message intended solely to protect themselves. Such self-interest may be understandable, but the trial team must get the key witnesses together and get them to understand how every player must work together to most credibly demonstrate what actually happened in the incident under question.

We are not saying that key witnesses should manufacture stories that work best for the defense. Our point is that witnesses in medical malpractice cases often send the wrong message that they don’t care or that quality of care was lacking, because they fail to appreciate how their actions fit into the larger story of trial. Even a medical professional who is sure that he or she has done nothing wrong can experience guilt and may second-guess himself. The professional’s concerns and doubts must be discussed in advance so that everyone on the trial team is in agreement. Many medical witnesses hold back information during early interviews because they either want to protect themselves or someone else. These witnesses must be made to understand that, without their full cooperation, they may easily get the blame for something for which they are not responsible.
Demonstrating that hospital and medical professionals care about patients and strive to deliver

• While jurors continued to be upset about what they saw as shortcomings in treatment, they couldn’t ignore the fact that there was no evidence to support the plaintiff’s theory.
the best possible care is clearly a key to persuading jurors. Successfully delivering this message communicates to jurors that the defense cares about the same things the jurors care about. This allows the defense to more effectively deliver all other parts of its story, to reduce punitive attitudes, and to open the door to addressing the issue of alternative causation.
But as the defense attempts to explain its take on the causation issues, it must keep in mind that jurors primarily see causation as a commonsense, not a scientific, issue.

Commonsense Causation
Commonsense causation involves jurors’ attempts to identify a simple link between conduct and outcome. The process is best understood as an examination of whether observed mistakes, shortcomings, or treatment decisions might have played a role in the plaintiff’s situation. Jurors are not looking for scientific certainty; they are looking for plausibility (i.e., could the plaintiff’s assertions be true?). Thus, jurors are not really searching for the detailed medical evidence most defendants provide. Rather they are asking themselves some very basic questions:

• Did the treatment or mistake occur in relatively close temporal proximity to the plaintiff’s injury?
• Were the mistakes serious? (e.g., Did the doctor fail to order tests which in retrospect would have identified the problem?)
• Were the mistakes reprehensible? (e.g., Did the nurse fail to report “clear” signs of deterioration?)
• Could the outcome for this patient possibly have been different if the medical staff or hospital acted differently?

Thus, the plaintiff’s lawyer’s job is complete when he or she links mistake to bad outcome, a job made all the easier because this is exactly how jurors are prepared to examine the issue.

It would be wrong to blame jurors for applying their common sense to a difficult situation. In fact, the presence of competing experts invites jurors to rely on simple commonsense causation theories. On the one hand, the plaintiff has a high-paid expert who says there is a causal link, and on the other hand, the defense has several high-paid experts who say there is no link. The experts, having provided contradictory viewpoints, have done little to improve the jurors’ ability to evaluate the cause of the plaintiff’s situation. Medically (and for that matter, scientifically) untrained jurors are left to decide which complicated medical theory is most compelling.
So jurors size up the situation: The best experts can’t agree on the cause of the problem; that means these doctors and this hospital can’t be ruled out as potential causes. Jurors further reason: Errors were indeed made, the plaintiff is hurt, and one could reasonably argue that different conduct might have influenced the plaintiff’s outcome come. From this standpoint (and you might even mix in jurors’ natural consideration of the presence of insurance), it is easy to see how a defense verdict no longer looks palatable to most jurors. Sure, the defense can point to an alternative cause, but the jurors notice that even the “best” experts can’t agree on what caused the problem. Many jurors will conclude that, since there were mistakes, they simply cannot rule out the plaintiff’s theory that the doctors or the hospital caused the plaintiff’s serious problems.
So what do you, the defense lawyer, do? Is there any hope of ever persuading jurors that the doctor or hospital was not the cause of harm? The question you must answer is: How well can you demonstrate your alternative cause via commonsense evidence? Your ability to determine the answer to this question will tell you a great deal about whether you have a defensible case.

Perhaps the most power commonsense evidence relates to whether there are pre-existing conditions which can be directly linked to the plaintiff’s current condition. A plaintiff’s pre-existing conditions are powerful because they directly play into jurors’ common sense reasoning. For example, in a series of cases in which people claimed a medical product caused autoimmune disorders, jurors were extremely interested in evidence that demonstrated that the plaintiffs had long histories of similar complaints that preceded their experience with the medical product. While jurors’ interest in this information shouldn’t surprise anyone, it is a compelling finding because jurors were consistently more interested in the plaintiffs’ pre-existing conditions than the very clear scientific evidence showing that the product couldn’t cause the complaints alleged. While the presence of pre-existing conditions is powerful, lawsuits against doctors and hospitals many times do not provide clear-cut pre-existing problems that can be credibly presented as an alternative cause.
However, even in the absence of pre-existing conditions, commonsense alternative causes are possible. For example, in one case, the plaintiff claimed that the doctors and nurses failed to deliver a simple treatment that would have saved the patient. The plaintiff staked his case on demonstrating a particular theory about how the injury occurred. The plaintiff was counting on jurors “buying into” his version of events.

In this case, the defense had a compelling alternative cause—a cause over which the medical professionals had little control and couldn’t have predicted—for the bad outcome. The defense had experts, but what jurors found most compelling was the simple and easily comprehensible evidence that the defense’s theory was the most accurate one. The defense created a simple summary chart that listed factors that would have had to be true (but weren’t) for the plaintiff’s theory to be correct (e.g., if the plaintiff’s theory was correct, the patient would have lost a tremendous amount of blood, but there was no evidence of blood loss). Likewise, there was another chart that listed simple commonsense indicators showing that the defense’s theory was most accurate (e.g., the defense theory requires a sudden onset of health problems and all the evidence pointed to a sudden onset).
While jurors behaved very normally and continued to be upset about what they saw as shortcomings in treatment, they couldn’t ignore the fact that there was no evidence to support the plaintiff’s theory. Armed with this information, defense jurors refused to give into plaintiff jurors who only wished to discuss the shortcomings in treatment. Another benefit of the commonsense evidence approach is that your experts get to communicate and support theories that jurors see as consistent with their own common sense. This enhances the expert’s credibility and decreases the risk that the expert will be written off as a “hired gun.”

Learning what represents commonsense evidence for jurors is obviously critical. Consequently, there is a great deal of benefit in pretesting causation theories with surrogate jurors. Since the goal is to identify with jurors’ common sense, it is important to test and refine the alternative causation theory before you actually get to trial. Once the strategy to be advanced has been determined, the research process can also include jurors’ evaluation of key witnesses who must deliver the causation message. Finally, none of this testing would be complete without gaining an understanding of how jurors react to the conduct in question, and whether jurors will ever be able to get past the behavior of the doctors, nurses, and hospital so that they might entertain the issue of causation.

Pointing the Finger at Another Defendant

Invariably, as the defense strategy evolves, attorneys sometimes wonder whether they can lay blame off on another defendant (or for that matter a non-party/empty chair). This can be extremely dangerous strategy if you want jurors to buy into your alternative causation theory. The problem is that jurors, unlike lawyers, are not well equipped to accept arguments in the alternative (for example, “We behaved responsibly, but even if you think we didn’t, we weren’t the cause of the harm.”). Thus, jurors tend not to be receptive when one defendant attempts to blame other key actors involved in the incident, while also claiming the plaintiff’s bad outcome was caused by unpredictable events or events we couldn’t control. Jurors’ minds are asking: “Which is it? Was there an unpredictable alternative cause or did this other defendant really screw up and cause the problem?”
One might wonder whether you can point the finger of blame at another party/defendant if you are also saying that party was responsible for the alternative cause. Such an approach would be more consistent, but consider the additional challenges it might create. A hospital blames the doctor and says the cause of the incident wasn’t the nurses’ failure to behave appropriately, it was the doctors’ choice of drugs. This approach presents a consistent theory from the juror’s perspective, but it would almost certainly lead to an unsatisfying result for the hospital.


First of all, jurors would likely hold the hospital culpable for the doctor’s actions regardless of the legal separation between the parties. Consequently, the hospital would take some blame whether the doctors were in the case or not. Moreover, if there was a doctor in the case, one would expect the doctor to defend himself and
assign blame back on the hospital. It is easy to see how this quickly becomes the best of all worlds for the plaintiff. Each defendant must ask itself: “What do I really believe happened?” If you conclude there was really an alternative cause that can be commonsensically demonstrated to jurors, then you must be careful not to undermine your strategy by arguing in the alternative and sending jurors the message that you may not be totally confident in the theory you are putting forward.
Almost without fail, the moment the “blame game” begins, alternative causation arguments lose their viability. This was clearly demonstrated in a case in which the defendant doctors refused to cooperate with each other or the hospital in defending against a claim in which a man became a quadriplegic while undergoing treatment in the hospital. The hospital’s trial team developed a clear and strong alternative causation case that the doctors agreed was certainly the cause of the bad outcome. However, the doctors would not give up their additional strategy of arguing in the alternative and blaming each other and the hospital’s staff. They wanted the jury to believe the alternative causation story, and they were going to testify in support of it. Yet, they also wanted to tell the jury that, in case you don’t accept the causation story, you should know that I (in this case, each doctor) am not responsible for the bad outcome. The doctors essentially guaranteed that no one would believe or accept the alternative causation theory because their defense approach communicated they didn’t really believe it themselves.

Getting a jury to “buy into” a defendant’s theory of alternative causation is already challenging enough, and the task becomes almost impossible when everyone isn’t committed to the same approach. It takes only one uncommitted witness or attorney to submarine an alternative causation theory that had been meticulously placed before the jury. If we want the jury to believe our theory of the case, we must be sure to send it the message that the defense also fully believes its own theory.

Conclusion
When patients have bad outcomes and file lawsuits, the defense team is faced with a unique and special challenge. The issue of causation just isn’t a natural part of most jurors’ negligence calculus, despite the fact that this is usually the issue that the defense teams feels best armed to defend. Recognizing jurors’ reluctance to consider causation hopefully encourages trial teams to take it less for granted that jurors will give serious consideration to the issue and spend more time during voir dire and trial positioning causation as relevant to the ultimate decision in the case. Moreover, there needs to be an appreciation that succeeding with alternative causation arguments is directly linked to satisfying jurors that the doctors and hospital really care about their patients (and cared about this plaintiff specifically), and then presenting a uniform alternative causation theory everyone on the defense side of the table can stand behind. And ultimately, an alternative causation theory will only make sense if it matches up with your jurors’ common sense.

Copyright 2001 The Defense Research Institute, Inc. Reprinted with permission.

Texas Paralegal Journal © Copyright 2003 by the Legal Assistants Division, State Bar of Texas.

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