Medical malpractice trials should not be shrouded in secrecy. Following are 5 more “secrets” that jurors should know (continued from yesterday).
Secret #5. If a doctor admits fault to a patient, Ohio courts will not allow that into evidence. Ohio recently enacted a so-called “Apology Statute” that keeps a doctor’s admission out of evidence.
Secret #6. Jurors want to know when doctors engage in misconduct like altering records or acting recklessly. However, these facts can be withheld from a jury. When a doctor commits malpractice to a degree where punitive damages are warranted, Ohio law bifurcates the case into two phases, holding the worst evidence until the jury has already found against the doctor.
Secret #7. Jurors often get confused by expert testimony. I have heard more than one juror state that “if the experts can’t even agree, how can you expect me to figure it out?” That’s the whole point. Defense experts will contest everything in the case from the doctor’s negligence to causation to life expectancy. They don’t need to be right, they just need to confuse the jury.
Secret #8. People often assume that runaway verdicts are common. Based on what they hear in the media, jurors believe that most juries, swooning with sympathy, lose all sense of reason. I mean, all you have to do is pour hot coffee in your own lap, and a jury will give you $2 million, right? In fact, jury bias overwhelmingly favors healthcare providers. I like to ask prospective jurors to describe a frivolous lawsuit that they have heard about. The only one that I have ever heard about is the McDonald’s coffee case. But that case occurred 25 years ago and 2000 miles away. Why is it still on our minds? The answer is simple: the high-powered publicity machines of Big Insurance and Big Medicine, using front groups like the Chamber of Commerce and politicians, continuously poison the public’s mind with falsehoods about a lawsuit crisis as a way to avoid accountability in American courtrooms. The only real crisis is a Malpractice Crisis wherein over a 100,000-400,000 people die each year in the U.S. from preventable medical errors.
Secret #9. Ohio enacted caps on damages in medical malpractice cases, but it’s a secret. By law, the judge is not allowed to tell the jury about the caps. So, when a jury finds in favor of a plaintiff and their verdict includes adequate compensation for the plaintiff, little does the jury know that the judge is in the back room cutting up their verdict to comply with secret caps.
