In Part 1 of this blog, I updated Ohio medical malpractice attorneys on the state of informed consent claims. In Part 2, I want to discuss how to use concepts related to informed consent to overcome juror bias in medical negligence trials. It is well-established that injured patients do not get a fair shake at trial due to jury bias. Jury bias takes many forms, and the vast majority of jurors are not even aware that they are biased because these innate biases work on a subconscious level.
For example, the so-called “defense attribution bias” causes jurors to subconsciously distance themselves from a catastrophic healthcare disaster by imagining that they would have taken steps to avoid being victimized if they were in the injured patient’s shoes. Having personally tested this bias in focus groups composed of potential jurors, I was amazed to see how powerful the bias is and the lengths that people will go to delude themselves into thinking they would have outsmarted the doctors who provided negligent care. For instance, we hear in breast cancer cases, where a screening mammogram was mis-read, that the juror would have gotten a second mammogram. When in the history of medicine has a woman obtained a second screening mammogram after being told that the first one was normal? Never. Yet, we hear this reasoning all of the time.
Defense attorneys are well aware of these various biases and they play to them every chance that they get during trial. One way that they do so is by waiving the consent form around during any trial involving a surgical complication. This invites jurors to shift the blame to the patient. After all, jurors will say, the patient accepted the risks of the procedure and it was just this particular patient’s bad luck that led to the complication.
Despite this bias, boilerplate consent forms have become so perfunctory in medicine that they are a joke that everyone, including jurors, is in on. Jurors commonly perceive them as a way that doctors cover themselves, rather than as confirmation that a thorough and thoughtful discussion about the procedure has taken place. So, when trying a lawsuit based on a surgical complication, you can use the consent form to show that surgeon was well aware of the risks of the procedure. Then, you must show that the surgeon failed to take steps to avoid the known complication. This, of course, requires careful examination of the medical records and consultation with quality medical experts to discover how the surgeon deviated from standard practices and thereby contributed to the complication.
For instance, I tried a case involving surgery performed by an otolaryngologist (also called an ENT or “ears, nose and throat” doctor). The surgery was performed to remove an enlarged lymph node on my client’s neck. The surgery was necessary so that the doctor could send the biopsy to pathology to see if the lymph node contained cancer. However, when the surgeon excised the node, she cut the spinal accessory nerve that runs through the surgical field. This is a large nerve, about the size of a thread of yarn, so it should be easily visible.
At trial, I pointed out that the spinal accessory nerve is the only vital structure that ran through the operative field and that it is large and visible. Further, every surgeon who took the stand acknowledged that cutting that nerve has tragic consequences for the patient. Loss of the nerve leads to loss of muscle control in the shoulder and a resulting pain syndrome. In some circumstances, it is difficult for the operator to identify the nerve, such as when the operative field is obscured by cancer, cat scratch fever or scar tissues from prior surgery. But in a “virgin neck,” like my client had, the structure should be identified and avoided. It is a known risk and the surgeon should have taken proper steps to avoid it. This fact is most evident from the consent form.
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