We often find during focus groups that with bad medical outcomes come the criticism that “more tests” would have been the solution. With the benefit of hindsight, jurors insist doctors should have had enough foresight to predict an extra test would have provided the answer, and at the very least could have provided a solid defense if something were to ultimately go wrong.
As we have observed across the country, jurors tend to favor defensive medicine and the idea of “just ordering more tests,” but rarely consider the potential drawbacks.
Doctors are aware of this tendency as well. Many articles have been published about defensive medicine in which doctors order extra, and often unnecessary, CT scans, MRIs and X-rays to prevent missing something, or as a “CYA” move driven by fear of malpractice lawsuits. In fact, a 2011 study by Children’s Hospital of Philadelphia involving 72 orthopedic surgeons found “defensive imaging” accounted for 20 percent of total tests – including more than half of all bone scans and ultrasounds performed and one-third of MRIs and CT scans.
In cases involving criticism of the failure to order certain tests, oftentimes jurors assume the decision not to do so was a cost-saving measure or the patient didn’t have “good insurance.” We frequently encounter these assumptions and have found that addressing the cost issue can present a double-edged sword. If a particular test is expensive, jurors might perceive someone’s health was sacrificed in order to save a few bucks. If a test is inexpensive and there were no insurance limitations, then it bolsters the juror position of “why not just do it?”
To address this defensive medicine dilemma, we have found third-party credibility is particularly effective in establishing medical professionals don’t order tests on a “why not” basis, but rather a “why” basis – meaning the reasons specific symptoms must be present and certain criteria must be met. In this context, presenting national guidelines can substantially mitigate the deep-seeded juror predisposition that doctors should “always do more.”
Furthermore, although to jurors it is often a matter of simply “ordering another test,” explaining the potential harm of over-testing could also be influential. Unnecessary tests can expose the patient to false positives and potentially harmful effects such as unnecessary cancer-causing radiation. In our experience, jurors are unlikely to accept cost as an excuse for any perceived lapse in patient care but are more open to learning about health risk-and-reward scenarios, as well as the guidelines and criteria established by national medical organizations.
If you’d like our perspective on how to manage juror expectations in your case, we’d be happy to help. Contact Senior Vice President Claire Luna at 714-754-1010 or cluna@juryimpact.net.
