During the Covid-19 pandemic, healthcare workers quickly became “heroes” as they risked their lives to treat patients, sometimes becoming ill themselves.
It was a “halo” effect that often extended to the institutions they worked for as the media depicted packed hallways with people awaiting care, many of whom were underinsured or without insurance.
But like many heroes, their status did not last forever, nor did it extend into the medical malpractice arena as some experts predicted.
“Jury verdicts were down considerably during the Covid years primarily for the simple reason courts were closed for trials,” said Richard Henderson, senior vice president at the global reinsurance company TransRe. “On the settlement side, some claims still settled during this period, but the general sense is that many plaintiff attorneys were not satisfied with offers made on behalf of defendants, with some even going so far as to suggest insurers were trying to leverage the court closures to achieve more defense-friendly settlements.”
Fast-forward to the post-pandemic world and it’s now quite common for claims to result in seven- and eight-figure awards.
According to statistics that were compiled by TransRe, there were 160 verdicts of at least $10 million during the years 2022-2024, compared to 116 in the pre-pandemic period of 2016-2018.
In addition, 79 of the 160 verdicts totaled at least $25 million during the same period from 2022-2024 versus 38 in 2016-2018.
“Individual settlements remain tightly confidential but, in the aggregate, amounts paid in settlement on these same claims tried to verdict have increased as a percentage of the verdict,” Henderson said. “Thus, med mal claims are not only being lost for greater amounts, they are also settling in the aggregate for higher amounts, which can be viewed as an ominous outcome.”
Jonathan Rubin, partner at Kaufman Borgeest & Ryan, said unfortunately the positive feelings the public had about the healthcare industry during the pandemic have in many cases been replaced by frustration about high costs and the quality of care.
“We are in an angry time and sadly big institutions are often a target,” Rubin said. “This is reflected in juries, and jurors now feel more justified in awarding higher amounts.”
Factors such as ‘reptile theory’ legal strategies, repeated negative media portrayals of medical providers and institutions, a rise in plaintiff advertising, and shifts in jury demographics all contribute to this trend of increasing jury sympathy and larger payouts, he added.
Audrey Murray, chief executive officer and senior consultant at Exhibit One Creative, which provides services to litigators that help them visually depict case arguments and make decisions about whether to try or settle claims, said the plaintiff’s bar has made sure jurors know healthcare institutions can write big checks.
“I also think juries are aware that plaintiff attorneys take upwards of 40% of an award and they are trying to ensure that the plaintiff is fairly compensated,” Murray said. “In some cases, angry jurors have created what is known as ‘activist juries’ that seek to punish defendants resulting in higher awards than the amount originally asked for.”
Advertising and juror conditioning
Last April, Rubin and Murray were part of a panel at the Crittenden Medical Liability Conference entitled “Social Media and Reputation Management,” which examined ways to use digital and traditional advertising to create a more positive view of the healthcare industry among the public.
“Plaintiff’s attorneys advertise everywhere,” Rubin said. “From billboards and television commercials to social media, the public is inundated with their messaging.
Whether because of the ads, the times we are living in or a combination of the two, the plaintiff’s bar is now viewed in a more positive light, he added.
“The truth is not every bad result is malpractice and there are many wonderful providers out there who care a great deal about their patients and do their very best every day to provide good care,” Rubin said. “As litigators we put up the best defense possible, including picking the best jurors, but I would argue that a lot of this work needs to start long before a case is filed with messaging that helps cast potential clients in a better light.”
During the conference Murray discussed juror habituation in which potential jurors have been pre-conditioned by an influx of social media and billboard ads to think that high awards are the “norm” in today’s society.
“For years and years billboards and TV ads were the outlet in which the plaintiff’s bar spread the word about their case outcomes—the bigger the verdict, the better,” Murray said. “Now, they can do virtually the same thing but on social media, which casts a wider net, is less expensive, and can often lead to real engagement. This is a highly curated way of publishing their victories as a mechanism to attract more cases.”
Murray said it also habituates the jury pool into thinking that those dollar amounts are a normal thing to award.
“Since no defense lawyer will ever do that our advocacy and messaging has to start before they come onsite for care,” she said.
Shaping a better narrative for healthcare
So what can defense teams do to get patients, potential jurors and even plaintiffs to view the healthcare industry through a more favorable lens?
There are a variety of options, some more costly than others.
One example Rubin reviewed was a “highly effective” television ad by Montefiore Einstein featuring actor Paul Giamatti, which seeks to demonstrate its commitment to the diverse population it serves.
“Everyone Loves a Comeback. Paul Rivera Got a New Lung and a New Life” takes place in a diner setting, with Giamatti telling the story of Bronx resident Paul Rivera, who got a potentially fatal diagnosis.
His only hope was a lung transplant, but his hospital said it wouldn’t put him on the transplant list because of a pre-existing condition.
When Montefiore Einstein hears his story, the institution steps in and gets him the life-saving transplant. The ad concludes with Giamatti saying that Rivera now sees every day as a gift and he’s making the most of his second chance.
“It’s not glitzy but it is a very relatable and moving story and it gets the message across that Montefiore Einstein cares about people,” Rubin said.
While a high-end production ad such as that one isn’t an option for many healthcare entities there are other ways to create a more positive narrative.
Putting faces to institutions
Larry Smith, vice president of risk management services at MedStar Health, which includes 10 hospitals and over 300 other sites of care in Maryland, Washington, D.C. and Virginia, said providers need to do a better job conveying the message that care is provided by “real people,” not by faceless institutions.
“We need to take things down a notch and focus on the good work that nurses and doctors do every day to counteract the dystopian view advanced by the plaintiff’s bar that health systems are uncaring, careless and irresponsible,” Smith said. “While we are very good at promoting how great we are as we compete against each other for business, we need to be more focused on letting people know how good we are at taking care of patients, their families and our communities.”
While the public is constantly bombarded with billboards and other ads from plaintiff lawyers boasting about the millions of dollars they have won for clients, Smith said there are very few examples of healthcare systems communicating the great work done by the organization and its people.
“I have seen some very good ads that tell a story of how a physician has helped an injured weekend warrior return to the sport they love,” Smith said. “The Montefiore ad shared during the conference was amazingly effective at showing how much ‘heart’ there is in healthcare.”
He said healthcare organizations are using social media as an “effective way of reaching out to the patient community with its message of caring.”
At MedStar, Smith said every hospital has a patient and family advisory council that serves as its community representative, bringing the voice and the view of residents into the organization, while at the same time communicating the programs and services it provides.
MedStar also has an extensive sports medicine program that provides medical care to most of the major league teams in each of the major sports in Maryland and D.C.
“This same healthcare team also provides medical support to many of the local colleges and universities as well as high schools,” Smith said. “These providers reach out to elementary schools to promote the value of exercise and safety in sports.”
In many ways, Smith said this is a significant community good will program that allows the public to experience a firsthand relationship with individual sports medicine providers including nurses, doctors, physical therapists and others.
Patient advocacy as a risk strategy
Murray said having patient advocates on hand to assist vulnerable individuals, i.e., those from lower socio-economic backgrounds, non-English speakers and LGBTQ+ patients can go a long way toward staving off claims.
“All patients want to feel that they were a priority while being cared for and that their lives are valued,” she said. “Patients get incredibly frustrated with healthcare systems when they feel like they are just a number, especially when the bills come rolling in.”
Murray added that as soon as patients feel like they are being heard and are getting more than standard treatment, research shows that even if they do not get the result they want they are less litigious.
“It may all come back to something as simple as good bedside manner,” Murray said.
