During more than 15 years of conducting live (and now virtual) jury research for medical malpractice cases, one of the most common juror questions we encounter is, “Did the plaintiff have health insurance?”
This question is so common because of the strong perception among many jurors nationwide that a patient’s insurance status dictates the level of care they receive. As such, in a medical malpractice case where errors are alleged, the patient’s insurance – or lack thereof – can provide jurors with an explanation for why the patient received a lower level of care and attention.
Especially given that an insurance card is one of the first things we are asked for when we go to a hospital or doctor’s office, this widespread juror predisposition about the importance of insurance is understandable.
The perceived importance of establishing one’s insurance status before any care is provided also feeds the misconception that all subsequent care providers must also be aware of that status – and therefore they factor it into what level of care they give to the patient. Another common assumption we have observed among some jurors is that the decision whether to order certain tests, some of which can be expensive, is also based on the patient’s level of insurance coverage.
We have also learned that many jurors believe having “the right kind” of insurance can influence the quality of care. Perhaps not surprisingly, those jurors who have been on county or state-provided health coverage are typically the most vocal in expressing a perceived bias within the healthcare system.
During recent virtual focus groups, some participants were familiar with the clinic where the plaintiff received her prenatal care, and its reputation for serving patients from a lower socioeconomic status. As such, these jurors assumed caregivers from the defendant hospital, who knew that the patient had been sent there from that particular low-income clinic, were judging or looking down on the patient – which to them explained caregivers’ apparent lack of urgency. It is notable that the plaintiff did not make any of claims of this sort – these jurors simply assumed, based on their own perceptions of the clinic, that this was the case.
Although we often have to explain to research participants that the plaintiff’s insurance status is almost never admissible and is not something they should consider, this does little to dissuade jurors from their underlying assumptions. This highlights the importance of asking the right questions during voir dire, as well as taking the time to explain to jurors that treating caregivers are often totally unaware of a patient’s insurance status, and decisions about which tests to order are solely based on medical judgement – not what kind of insurance the patient has.
Like many of our findings from nationwide jury research, some of these observations are highly location dependent and perceptions about insurance informing care are more prevalent in certain jurisdictions. When evaluating risk, it is vitally important to understand the predispositions and assumptions that are out there (whether rational or not), where they stem from and how they can affect juror interpretation of your case facts.
Although many courts are still closed, mediations are still happening and we are still conducting research. If you want to evaluate a case, test key witnesses or learn more about your trial venue, please contact Partner/Senior Vice President Claire Luna at cluna@juryimpact.net to find out how we can help.
Pivoting During a Pandemic
We will be resuming in-person research later this month in some areas, but we will continue conducting virtual focus groups in many jurisdictions into the fall. This includes areas with an older population that is higher risk, or places with extremely restrictive social distancing policies limiting the number of people in a room.
Our virtual focus groups have provided our clients a meaningful way to evaluate cases and develop mediation and trial strategy. Through Zoom, we can conduct focus groups that provide the same kind of challenging, juror-driven discussion you love from Jury Impact but through remote technology. Juror predispositions, case facts, arguments, witness videos and damages can all be tested while you observe and communicate with our backroom analysts to make sure the research stays focused on your priorities.
Jurors are craving both social interaction and financial compensation right now, and this format allows your trial team to safely explore their perspectives through virtual-only research. Contact us for more information on this approach, or a no-cost webinar to see exactly how it works.
