Bare Doctor Blog: Lubell & Rosen Law Firm

Jurors in a medical malpractice lawsuit can be divided into two groups: physicians and nonphysicians (a.k.a. patients). Plaintiff attorneys in a medical malpractice case do not want physicians on juries, fearing the physicians will be sympathetic to one of their own. Accordingly, when discussing jury selection, let’s focus on patients, who constitute the majority of jurors anyway: patients.

Such jurors come into the courtroom with biases for or against physicians based on their personal experiences as patients. Those who have had negative experiences or who consider themselves victims of a medical “injustice” will likely take a negative view of a defendant-physician.

On the other hand, and more often than not, jurors tend to be biased in favor of defendant-physicians, whom they perceive as playing a positive role in society. Further, jurors, like the general public, have come to view many medical malpractice lawsuits—and many lawsuits, in general—as frivolous. For this they blame plaintiff attorneys, whom they believe are clogging the courts with unwarranted lawsuits. For this reason, plaintiff attorneys try to strike, or eliminate, jurors whom they believe are biased against attorneys in general. Such biases might make them hostile toward plaintiff and thereby unable to consider evidence objectively.

Given these circumstances, plaintiff attorneys recognize that winning a malpractice case can be an uphill battle, and so they look for cases with a “wow” factor—namely, cases that involve some action on the part of a physician that is so egregious that it negates any pro-doctor sympathy.

Mediation is the process by which parties to a lawsuit attempt to settle the lawsuit through a neutral facilitator, the mediator. Typically, the parties gather in a room to discuss the strengths and weaknesses of their cases and thereafter break off into separate meetings, or “caucuses.” The defense team talks among itself, as does the plaintiff’s team. The mediator shuttles between both camps, intentionally playing the role of “double agent,” all the while bringing the parties closer to an agreement. Ultimately, if the parties agree to resolve the matter, a written agreement is crafted on the spot and submitted to the court for approval.

In legal proceedings and under bar rules, defense attorneys can only communicate with plaintiffs through their attorneys. Accordingly, plaintiff attorneys serve as buffers, and as in the children’s game of telephone, not all messages get through. In mediation, however, the lines of communication are open. Defense attorneys can speak directly to plaintiffs—and they can share that their clients are judgment-proof. Having an asset-protection plan in place gives defendants an additional bargaining chip, increasing the likelihood of a more advantageous settlement.

In Florida, the status of the law of joint and several liability affects a physician’s involvement in a medical malpractice lawsuit. Under current law, defendant-physicians in a medical malpractice lawsuit are liable only for their percentage of fault. Previously, all defendants were liable for the full extent of the damages, despite their degree of malpractice. These new rules affect the collectibility of judgments for plaintiff attorneys. For example, years ago, in a lawsuit against a physician and a hospital, it was virtually guaranteed that the hospital would be liable for the full verdict, even if a physician was primarily responsible for the negligence. Today, the hospital is liable only for its percentage of fault; so too is the physician. Thus, today, a plaintiff can only collect the judgment apportioned to the physician, and only if the physician is collectible, meaning his or her assets are unprotected. A physician whose assets are protected is virtually judgment-proof. This makes a plaintiff’s case less valuable, at least in the eyes of the plaintiff’s attorney, who would be forced to go after a hospital or any other available deep pocket he or she could find.