EXECUTIVE SUMMARY

The COVID-19 pandemic might benefit defendants in malpractice lawsuits. The image of healthcare workers doing their best in the pandemic could affect jury decisions.

  • Typically, many jurors are biased in favor of medical malpractice plaintiffs.
  • New perceptions of healthcare workers could level the playing field in litigation.
  • The effect could influence decisions to settle or go to trial.

Hospitals and other healthcare organizations could benefit from a COVID-19 “glow” or “halo effect” in which medical malpractice juries look more favorably on defendants because of the public’s positive perception of healthcare workers. The portrayal of doctors and nurses as heroes might leave a lasting impression that affects how jurors perceive defense arguments.

COVID-19-era jury perception surveys conducted by Magna Legal Services, a national jury consulting firm in Washington, DC, revealed healthcare is one of the industries likely to benefit from a “halo effect” in litigation that goes to trial. Survey data indicate 81% of respondents reported a greater sense of compassion for healthcare workers since before COVID-19, says Rachel York Colangelo, PhD, national managing director of jury consulting with Magna Legal Services.

Twenty-three percent of potential jurors surveyed knew a COVID-19 healthcare worker. Sixty percent of respondents said they would be “less critical of healthcare workers post-COVID.” Eighty percent said they were “very concerned” about COVID-19 healthcare workers, and 81% said they would have a greater sense of compassion for healthcare workers after the pandemic. (More information on the survey is available at: https://magnals.com/covid-effect-on-damages/.)

“What we’re seeing is not surprising, given the publicity that frontline healthcare workers dealing with COVID have received,” Colangelo says. “Because of the goodwill they have garnered as a result of their tireless work, we are seeing what we call a ‘halo effect’ for not only frontline healthcare workers but the healthcare industry in general.”

There is a greater awareness of the work done by healthcare professionals, the conditions in which they work, the long hours, lack of resources, overcrowding, and the sacrifice of personal time.

“With that appreciation and understanding also comes a less critical view in the minds of the public who are potential jurors,” she says.

The effect also benefits pharmaceutical companies because of the public’s appreciation for the quick development of COVID-19 vaccines, she notes.

More Realistic Image

The public has always had some appreciation for healthcare workers, Colangelo notes. But sometimes jurors perceive doctors and nurses as brilliant, with years of training, and should be all-knowing. That can create an unrealistic and unfair expectation that doctors and nurses should get everything right the first time with accurate diagnoses, correct treatment, and perfect execution of procedures, Colangelo explains. When they do not meet that expectation, jurors can conclude the patient’s care fell below the standard.

The care might have met the actual standard of care but it did not comport with the juror’s unrealistic expectation of the clinician. “There also is the unfair assumption that if there is a negative outcome for the patient, that must mean the healthcare workers did something wrong, that they failed in some way. People have a hard time understanding that in medicine there is a lot of educated guesswork,” she says. “Doctors can be meeting and going beyond the standard of care but there can still be bad outcomes. People don’t necessarily understand that.”

The pandemic appears to be changing that perception, Colangelo says. The extensive media coverage of the challenges faced by hospitals and healthcare workers, along with the way the vaccines were developed, helped the general public better understand the practice of medicine is imperfect.

With this knowledge of how science and medicine work, people become less critical of adverse outcomes and the decisions made by healthcare workers, Colangelo says. They move toward a more realistic expectation of the performance of doctors and nurses and away from the idealized impression.

“This works to the benefit of healthcare defendants because when a jury is going to look at conduct, what was done and potentially not done or what went wrong and why, they are looking at it through this less critical lens,” Colangelo says. “They give more benefit of the doubt to the healthcare defendant vs. the plaintiff or the patient, who usually gets more benefit of the doubt.”

Jury Composition Affected

That is good news for any healthcare defendant facing a jury any time soon. Colangelo says the COVID glow could be considered when deciding whether to settle a case or pursue a jury trial. At least in the immediate future, medical malpractice defendants might fare better in a jury trial than would have been expected pre-pandemic.

The halo effect is not the only reason. Further research from Magna Legal also showed that many people are reluctant to serve on a jury during the pandemic, and those who are most reluctant to serve tend to be more plaintiff-friendly. The survey research has been proven by the analysis of seated juries in the past year that are more neutral or less biased toward the plaintiff than would have been expected before the pandemic. (For more information, visit: https://magnals.com/covid-19-fears-and-the-juror-experience-during-this-time/.)

“The people who a defendant would be most wary of and who would be most likely to award high damages are the people who have not been serving on juries lately. That may continue for at least a short time,” Colangelo says. “They have anxiety and fear of being with others in a public space during a pandemic, and there also are some hardship issues that are preventing certain people from serving on juries more than others. Those are people with financial hardship issues, for example, or childcare issues, and those issues typically make them identify more with the plaintiff.”

Those people are excused from juries for legitimate reasons, but as vaccinations continue and the country continues to reopen, that jury composition factor will wane.

Leveling the Field

As much as potential jurors profess to be unbiased, it is known jurors go into a medical malpractice trial with a bias toward sympathizing and believing the plaintiff, Colangelo explains. The pandemic experience is tilting the bias closer to even.

The COVID glow should persist for some time, Colangelo says, probably several years. The glow will eventually diminish as the pandemic experience fades into memory. But COVID-19 made such an impression on everyone’s lives that it will remain influential for years.

The effect is likely to be more profound and to sustain longer for individual defendants such as doctors and nurses, Colangelo explains, and not as much for hospitals, health systems, and other organizations. Jurors are less likely to identify with a corporate defendant in the same way that generates the halo effect for individuals.

“This is no guarantee of a defense verdict, but it does suggest that at least in the immediate future jurors will be more open to considering a defense argument and less biased in favor of the plaintiff,” she says. “Jurors will be more fair and balanced heading into trial, as they should be. It levels the playing field for healthcare defendants.”

SOURCE

  • Rachel York Colangelo, PhD, National Managing Director of Jury Consulting, Magna Legal Services, Washington, DC. Phone: (866) 624-6221.