Juror behaviour changing in MedMal trials

Verdicts in medical negligence trials are changing due to rapidly evolving views on the part of jurors in the US – and the healthcare insurance industry must take note.

Claire Luna, managing partner at Jury Impact, told delegates at the Cayman Captive Forum that verdicts are becoming harsher because jurors have changed since the COVID-19 pandemic.

She warned that any company involved in healthcare that hasn’t done research on jury behaviour since the pandemic will find that their research is out of date, they may not understand a jury and their narrative may not resonate if they are involved in a lawsuit where they have to make a case to a jury.

Social factors have changed, Luna said, citing factors such as Covid-19, divisive political elections, rises in financial and racial inequity and a growing amount of polarisation in the US.

She explained that there has been an increase in aberration verdicts. Verdicts & settlements in high exposure cases have increased dramatically and this trend is trickling down to lower-value cases.

According to Luna jurors are basing verdicts on emotion & perceptions of credibility rather than facts & case law. She added that there is an increasing failure on the part of jurors to honestly review case facts and an increasingly unrealistic view of damages.

Jurors are also more pro-individual, due to more widespread anti-corporate sentiment. Jurors sometimes ignore the law and will decide a case based on ‘fairness’.

Luna also stressed that there was a growing distrust in the legal system, citing a poll that said that 17% of those polled have no trust in the justice system, up 9% on previous polls.

The rise of conspiracy theories is also a factor for some juries, with one poll saying that 15% of people in the US think that Covid was a hoax.

Jurors will rewrite the standard of care - ‘might have helped’ is the new standard. However, she added that for some jurors caregivers, employers and insurance companies are expected to go above that standard.

Luna warned that jurors looking for fault in the system and that trust issues developed during the COVID 19 pandemic, especially as the changing information and warnings at the start of the pandemic led to perceived inconsistencies that resulted in a growing distrust in healthcare, government, media and people in general.

Damages have also ballooned due to social inflation, she warned, especially as many people do not intuitively understand the true scale of large numbers, with the number of multi-million-dollar settlements increasing in number.