Plaintiff Jurors Focused on ‘Profits Over People’

The tension between corporations’ right to maximize profits and people’s right to be treated fairly, whether it’s employees or customers, has long been one of society’s most persistent debates. The tried-and-true storyline of “big money” versus “the little guy” still has legs today, and is a powerful force in how trial jurors frame and evaluate the claims in civil cases.

We have often observed during our focus groups nationwide that plaintiff-minded jurors tend to view a hospital as just another business trying to maximize profits. Even more worrisome is their belief that patients pay the price through corner-cutting, penny-pinching care.

These attitudes are far reaching. We recently conducted a survey of 634 jury-eligible participants in one of the most plaintiff-oriented regions of the country – the Baltimore-Washington metro area – and found nearly 50 percent agreed hospitals put profits before patient care. Only one-quarter of participants disagreed, and around the same number were in the middle.

Do you agree or disagree with the following statement: For most hospitals, profits come before patient care

In the survey, respondents clearly believed this focus on profits directly affects the care decisions doctors and nurses make on a daily basis. In fact, 66 percent of the panel agreed doctors sometimes don’t run important tests because of costs, and the majority believed those with health insurance receive better care than those without.

In the context of a medical malpractice lawsuit in which there has been an unfortunate or even tragic outcome, these attitudes cause jurors to look for times in which caregivers negligently cut corners or withheld tests or treatment in order to decrease the cost of care and improve the bottom line.

At trial, the first step in combatting this perception is understanding who in your jury pool is most likely to think this way. Our survey results showed that those who most strongly agreed that hospitals put profits over people were the unemployed, Hispanic/Latinos and those who have children living at home. In other surveys and our own experience, we have observed that groups who could be considered disenfranchised – low-income earners, those on government assistance, racial minorities, those who have been laid off in the past, etc. – tend to embrace these beliefs the most.

Should you end up in a trial where the “profits over people” narrative could rear its head, we recommend challenging it head-on in your own statements and through witness testimony. Here are some ideas for how to do that:

Ask caregivers to explain their logical reasons why specific tests were ordered and others were not. Bolster these statements with statistics about the rarity of a diagnosis or how common particular symptoms are of another diagnosis. This will provide jurors a logical reason for caregivers’ decisions – other than the bottom line.
Remind jurors that doctors usually aren’t hospital employees and don’t care about or even consider the costs. They’ll order whatever they think is necessary, no matter what it costs.
Ask nurses and doctors directly if they care about how much profit the hospital makes. We’ve yet to meet one who does.
Educate jurors that doctors and nurses do not even know about a patient’s insurance status – only the billing department knows that information.
The data show that jurors trust nonprofit and university hospitals more than for-profit ones, so if your client is a nonprofit or university hospital make sure to educate jurors about how these work. It’s hard for laypeople to understand how an institution that brings in billions of dollars annually is “nonprofit.”
If applicable, educate jurors that doctors can actually benefit from ordering more tests. During a recent set of focus groups, jurors were shocked to learn a doctor actually earned commission from the tests he ordered – and this was a powerful argument for the defense.

You want the jury to know the bottom line for the caregivers you represent is that they did what they could for the patient and weren’t even thinking about dollar signs. If you want to explore the impact of the “profits over people” bias in one of your cases, please contact Senior Vice President Claire Luna at cluna@juryimpact.net or 714.754.1010.

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