Using focus group research in medical negligence cases.

Knowing juror perceptions of negligence can hone your case and improve your outcome.

A trial consultant can conduct a focus group to help you refine your approach to discovery and prepare effective arguments for trial. Or, after reading the many articles that have been written on the subject, you can conduct a focus group of your own. [See, e.g., Kathryn E. Barnett, Letting Focus Groups Work for You, TRIAL, Apr. 1999, at 74.]

Whether you hire a consultant or conduct a focus group on your own, what researchers have learned from conducting these groups for medical negligence cases can be invaluable to you. This article gives pointers if you decide to use focus groups in your own practice.

First, the article presents questions on the issues and evidence in a medical negligence case that can be answered by focus groups. Answers to these and other questions--found in mock jurors' written responses and simulated deliberations--will help you refine your approach to discovery and trial. Second, the article gives some resuits from actual focus groups I have conducted in medical negligence cases. Finally, the article provides a list of themes that have emerged from focus group research that have proven successful at trial.

Questions focus groups can answer

* What do jurors think the medical professionals could have done differently in this case? What do jurors think these professionals should have done differently?

The answers to these two questions are sometimes different. What jurors accept could have been done differently may not mean that they think it should have been done differently.

For instance, a mock juror has said, "Yes, maybe the doctor could have seen the complications sooner, but he was only the on-call doctor that day. The patient wasn't really his patient; he was only covering for someone else. I don't think he should be held responsible for what happened."

* What are jurors' perceptions of medical care in general?

Rising costs for medical care frustrate many jurors, but they may not translate this frustration into negative perceptions of the medical profession. Rather, some jurors may worry about the potentially negative impact large jury verdicts could have on their own medical costs. In your focus group, test your best argument for why jurors need to disregard their own concerns when deciding what is fair for your client.

* Do your arguments create anxiety among jurors about the overall state of medical care to such a degree that they reject the plaintiff's case?

Placing too much emphasis on the negative aspects of health care (such as having a limited choice of doctors because of insurance plan restrictions) may simply frighten jurors, and the fear may cause them to reject your message. Instead, you want your case to inspire and motivate them to help your client. Therefore, you want jurors to believe that the defendant in this case is the exception, not the rule; compare him or her to all other medical professionals who meet the accepted standard of care. Likewise, using the concept of bad doctoring versus being a "bad doctor" is sometimes a good alternative. The jury can punish the act, not the doctor.

* In the case of a child victim, will jurors blame the parents for the child's injuries?

Many jurors are parents who feel responsible for the well-being of their children. It is hard for them not to wonder what the parents of your child victim could have done to prevent the outcome.

Some mock jurors report that "good parents" notice even subtle physical problems with a child. They say, "I would have taken my daughter to the doctor sooner" or "I would have gotten a second opinion; there is nothing more precious than my child's health and well-being."

There are generally two types of parents: doctor-goers and doctor-avoiders. Find out which type sides with your plaintiff and prepare to conduct voir dire on the issue. You may want to eliminate those who would take their child to the doctor at the slightest hint of a symptom or those who would question a doctor's judgment.

* How will jurors perceive the family members of your client?

This is critical to damages decisions. You want to know in advance if a jury will trust your client's family to spend the money awarded on the care your client needs. You can use short videotaped direct and cross-examination samples to test the perceived credibility of key family witnesses.

* What will jurors think the money can do to help your client? Will they be willing to consider all the assistance for the client that the money can buy? Which jurors are reluctant to explore the options available?

Great distinctions emerge among different focus group participants in response to the same evidence. Some fully appreciate the cost to family members who must care for the victim of medical negligence. These jurors are willing to compensate a wife, brother, daughter, or an entire family because all these lives have been changed by the injury of one family member. Other participants reject any claims for compensation other than strict medical care costs. You may find in the analysis of your focus group research that there are discernable reasons for these differences of opinion, and then you can address these appropriately in the actual trial.

If focus group participants generally agree that an illness or injury can affect the whole family, follow up with questions such as: "How does it affect the whole family? Does it have to? How long should it affect others? What should they do to cope with it?" You will get good ideas about how to approach a real jury.

At trial, you can ask potential jurors the same questions to find out their expectations. You may need to address the differences between jurors' expectations and the plaintiff's situation. Explain why the family used to feel the same way jurors do until this experience changed their lives.

* What purpose does monetary compensation serve in a wrongful death case?

Actual jurors will need a persuasive argument to award significant damages in a death case. Thus, listen to the mock jurors who can effectively articulate the reasons for an award and incorporate their reasons in your argument at trial.

Some mock jurors will respond, "The law says somebody has to pay when a person is killed." Others may use damages to make the defendant pay a price for the injury. Still others can envision how the money could create a legacy for the deceased --helping, for example, a son or daughter to go to college.

* What do jurors think is reasonable care? How will they interpret what you tell them is the standard of care?

Too often lawyers hear jurors ape the defense argument that as long as the doctor did his or her best, that is the most that can be expected. To change this attitude, you need to test with focus group participants arguments that compare negligence by another professional to that of a doctor.

Can you convince jurors that the accountant who embezzles money--one who does not adhere to his or her profession's accepted standards of practice--is no different than a doctor who ignores medical standards? What are the analogies that participants develop, or which one of your own works best with them?

* How will focus group participants perceive your brain-injured client?

You need to know if jurors will think this client is somehow "better off" because he or she does not cognitively "appreciate" the damage that was done. Because some brain-injured victims look physically healthy, some jurors may not understand the damage they have experienced.

In the case of a brain-injured math teacher, jurors saw videotapes of speech therapy and said it looked like the plaintiff would recover because he was mastering simple memory games. Learn how focus group participants perceive your client's true limitations. If jurors think your brain-injured client is like "Rainman" or "Forrest Gump," they will not appreciate the true and tragic nature of the injury.

* Will focus group participants think elective surgery means your client accepted an unnecessary risk?

Find out if you can persuade participants that all doctors performing all procedures, whether elective or not, must meet the standard of care.

Ask mock jurors if they think doctors who perform elective surgery have a different status than other doctors. You may also need to portray your client as someone who is "proactive" about health, that by electing to have the procedure, the plaintiff thought he or she was leaving nothing to chance. In your examination at deposition or trial, get the doctor to raise the bar for all doctors who perform elective surgeries by discussing his or her own expertise. Finally, explore the language of the consent form. There may be an agreement to accept certain risks associated with the procedure, but there is probably nothing that says the patient is agreeing to accept mistakes made by the doctor. Then you can establish that a patient who makes choices about his or her health is not agreeing to second-rate care.

* Will focus group participants exhibit a "get over it" mentality in connection with your client's injuries?

Just talking to people about their life experiences will tell you a lot about what they will think your client should do after being victimized by medical negligence. Listening to mock jurors will help you ask better voir dire questions and give you clues about what to do with the answers. When potential jurors describe the way in which they, too, have been harmed, be sure to find out how they overcame that situation. Anyone who just "sucked it up" is likely to expect your client to do the same.

* How do focus group juries express a balance of optimism and reality concerning your client's injuries?

Jurors are problem-solving people. They will want to help you remedy the problem, but they need to know they can do so rationally. Focus group jurors, when left to their own devices during simulated deliberations, will give you a good idea about the range of possible outcomes they predict for the plaintiff. You will find that many people want (or need) to be optimistic about your client's future.

At trial, let witnesses explain how the plaintiff suffers--the plaintiff should express a sense of hope about the future. Ask caregivers to describe the plaintiff's potential. Then they can establish what it may cost. Above all, the plaintiff, family, and lawyer should be asking the jury to help them accomplish something positive. If mock jurors have told you that they think the plaintiff may someday walk again, embrace the possibility and tell jurors at trial what it would take for the plaintiff to achieve that.

* How do focus group participants' personal experiences with caring for the sick, elderly, or disabled affect their views about appropriate damage awards?

My clients and I have been surprised at times to find that people with experience caring for the sick, elderly, or disabled were much tougher on damage awards than those with no experience in this area. Although there are no clear distinguishing factors, it seems that how people perceive their own experiences is generally indicative of how they think your client should deal with a similar issue.

For instance, one woman who had a brain-injured child served on the mock jury in a case involving a brain-injured victim of medical negligence. The woman reported during the debriefing session that she had "no trouble whatsoever getting state and federal funding" for the care of her son, so she did not expect that our client would have any trouble either. Had we not learned through the focus group that a person who could relate so closely to the brain injury also had no intention of supporting significant damages, we would not have known to be more thorough in voir dire.

* What do focus group participants view as inconsistencies in defense witnesses' testimony?

Often the communication between medical personnel in the critical moments leading up to the injury is essential to proving liability. Carefully relate this testimony to focus group participants, and let them tell you where the weaknesses or inconsistencies are.

What we have learned

The research from focus groups I have conducted for medical negligence cases over the past five years can be helpful to attorneys in a number of areas. Following are some of the findings that relate to specific aspects of a medical negligence trial.

Opening statement

In opening, attorneys should present only the most basic medical concepts to jurors and resist the urge to give all the medical testimony up front. Jurors need to be prepared for the disputed medical facts and opinions in the case, but the opening is better used for context (storytelling and theme building). Prepare your medical experts and rely on them to teach the science during their testimony.

A parallel structure for an opening (telling two stories side by side, intermittently) is effective in medical negligence cases. Consider telling what happened in the operating room by the minute and break away to the patient's family in the waiting room as the story develops. Or tell jurors about the standard of care while interrupting to describe how your client was treated.

Exhibits

Time-line exhibits are typically critical in these cases. Many claims turn on mere minutes (sometimes seconds) in the overall care of a patient. Use time lines to show what is charted by the medical personnel and--sometimes more important--what is not charted.

In many cases, a glossary exhibit, on a chart or in notebooks, will serve your jury well throughout trial. During discovery, keep a running list of the scientific terms jurors will have to be familiar with to decide the case fairly.

Create a glossary and use it in opening statement (if allowed), during expert testimony, and in closing argument. Prepare this well in advance and be prepared to argue for its admissibility. To be safe, use simplified textbook definitions.

Finally, remember that there are probably fewer than five terms that are critical to proving liability--going overboard in creating your list of terms will serve only to intimidate jurors.

Often, medical records used as exhibits are too confusing or hard to read to be persuasive. A medical record document often needs to be enlarged and graphically enhanced to highlight its various features. Sometimes just drawing a circle in an empty space where information is missing on a chart is as compelling as pointing out what is there. Electronic data from fetal monitoring strips, for example, need to be shown in contrast to what is normal. Pair the data for your client with data that would not signal a warning.

Standard of care

Unfortunately, many laypeople have only vague notions of what constitutes the standard of care. Although they hear the term throughout trial from lawyers and experts, it needs to be explored in voir dire and defined in openings and closings.

Use language from the hospital's own policy and legal instructions in the normal course of conversation to reinforce concepts like "reasonable" or "degree of care." Be sure to get your testifying experts to explain carefully the standard of care before you ask them if the defendant failed to provide it.

Establishing the standard of care requires a "compared-to-what" analysis in which jurors are convinced first of the benchmark. Listen carefully during voir dire when potential jurors describe how they have been treated by a medical professional. With what were they satisfied and dissatisfied? Let the jurors' life experiences help you develop the contrast of good care with bad care.

Agency

One of the hardest concepts for jurors is the legal concept of agency. Too often hospitals or health care organizations escape liability because so many doctors have independent contractor status with privileges at different places.

We have learned that you cannot assume that if the doctor is found liable, jurors will find the hospital liable, too. Interestingly, an individual act of negligence is more readily forgiven than a collective one. Spend time explaining why hospitals must share responsibility for the choices of one person--or a few.

Record keeping

Be sure to explore the importance of good record keeping during voir dire. Many times, the medical record is the only road map of what happened to your client; understanding it is crucial to proving what happened. Ask jurors how important it is in their personal lives or jobs to keep accurate written records. This question will introduce the idea that sloppy medical records can lead to dangerous results for a patient. You may also want to ask jurors if their own record keeping will ever be a matter of life and death to impress on them that for doctors, it is.

Communication

Jurors find poor communication (between doctors and nurses, doctors and other doctors, doctors and patients, or nurses and patients) intolerable. What jurors find most unacceptable is sloppy record keeping or miscommunication.

Likewise, jurors are disapproving of assumptions made by the caregivers that are dangerous to a patient. Medicine is a science, and in most cases jurors do not appreciate guesswork.

Catastrophic injury

Some of the most difficult cases to try are the ones in which the negligence resuits in catastrophic injury. Although you may count on a certain level of outrage from jurors, you would benefit from seeing how focus group participants deal with the emotional aspects of the case. Find out where the focus of your case should be (negligence or injury) in order to avoid causing jurors to tune out or "shut down" emotionally.

Themes

As one of my favorite trial consultant colleagues, Katherine James of Los Angeles, points out, good themes live within your cases. They are not plucked from the air and laid over your evidence.

Mock jurors themselves--in focus group research--drew the following themes from evidence, testimony, and argument.

Heed the warnings

Symptoms are what doctors must be able to recognize, and test results or data from an electronic monitor are often important warnings that something more serious may occur.

Too little, too late

The health care provider wasn't paying attention to the patient or test results. Inattention and failure to really listen to a patient are common complaints people make about health care.

Hope for the best, plan for the worst

Jurors appreciate a blend of realistic expectations and optimism in the outlook for your client. This approach to damages is effective because it is balanced and fair. Jurors want to know their verdict will make a meaningful difference in an injured person's life.

First do no harm

In many cases, language from the Hippocratic oath can be turned into an effective case theme. These words remind each juror that the last thing patients expect from medical professionals, who are supposed to ease their pain and suffering, is greater harm.

Fresh perspective

For more information about how to conduct focus groups--with or without the use of a trial consultant--spend time discussing the best methods for conducting research with an experienced consultant and read up on the subject. While focus group research is an additional expense, it can be an effective way to prepare and value your case.

For any type of case it is best to present a balanced presentation in order to gain valuable feedback from a focus group. Developing a balanced presentation requires time and your best effort. What you get in return is a fresh perspective and a new vocabulary about your case.

A quote from Voltaire may help put your case into perspective for the jury: "There is no such thing as an accident. What we call by that name is the effect of some cause which we do not see."

RELATED ARTICLE: Networking with professional negligence lawyers

Negligence occurs in many professions--including medicine, dentistry, psychotherapy, religious ministry, elder care, and accounting--often resulting in physical, emotional, or financial injury to patients, parishioners, and clients. This is why ATLA's Professional Negligence Section is one of the largest in the association, with 1,500 members.

The section provides a means for members to network with others practicing in similar areas of the law and to participate in educational programs and seminars. Members across the country work together, exchanging information on litigation strategies and expert testimony. Section membership also provides an excellent avenue for members to become more directly involved in the association, either as section officers or as active members of the various section committees.

An important networking service is the Professional Negligence listserv on ATLA NET (http://www.atlanet.org), which allows members to ask questions, seek advice, and trade information on experts via e-mail. The listserv is available to any regular, life, sustaining, President's Club, or sponsored paralegal member who is a member of any ATLA section.

A new ATLA NET feature is the section document library, which allows section members to upload any document (such as deposition, brief, or complaint). Any other member may down-load that document for free. The document library is available to regular, life, sustaining, President's Club, or sponsored paralegal members of the Professional Negligence Section only.

In its continuing effort to educate its members, the section will host an all-day educational program at the Annual Convention in San Francisco on July 19. Topics will include ghost surgery in teaching hospitals, attorney-client sex, placental pathology, a primer on medical instruments, danger areas for the orthopedist in surgery, and demonstrative evidence in medical-legal cases.

Any ATLA member in good standing may join the Professional Negligence Section for $121 annually. Dues cover a subscription to the Professional-Negligence Law Reporter, an annual membership directory, a biannual newsletter, and a 15 percent discount on convention audio recordings. Lawyers who have been in practice for 10 years or less may join the section for $36, but they will not receive a subscription to the law reporter.

The current section officers are Joel H. Lichtenstein, chair; H. Lee Thompson, vice chair; Gary D. Fox, secretary; Linda Miller Atkinson, treasurer; and Charles H. Baumberger, immediate past chair.

For more information about the Professional Negligence Section, contact Sections Coordinator Nancy Dugan at [phone], ext. 312.

Charlotte A. Wortz is a litigation and communication consultant with Zagnoli McEvoy Foley Ltd. in Raleigh, North Carolina.