For or Against—Inside a Juror’s Mind
Mark L. Rosen, Esquire
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.