As the domestic health care and law industries try to find a post-pandemic normal, medical malpractice firms are trying to look into their personal crystal balls to identify what the medical litigation landscape and juries may look like for the rest of the decade.
Law, pop culture and the pandemic
A generation of the domestic population that has grown up on legal television dramas and crime-related shows now has become the first generation in a country to experience a pandemic up close and personal, leading to an entirely new cross-section of law and health via pop culture and the pandemic.
How will this affect jury settlements in malpractice cases? Popular sentiment is that rulings may shift dramatically one of two ways:
- Lean toward leniency: With the pandemic affecting initially every possible member of a jury, a new level of sympathy, empathy and respect for the sacrifices health care providers make could make juries more sympathetic with health care providers, minimizing payouts in medical malpractice claims.
- Walking the tightrope: On the contrary, a new long-term mindset of juries could be to hold healthcare providers to a new, higher level of accountability and responsibility in the new pandemic environment, expecting all healthcare providers to have taken a step back and carefully reviewed all procedures and protocols.
This would lead to larger-than-expected payments and rulings, possibly leading to defense attorneys having to “reverse engineer” cases, making sure juries understand fiscal considerations before even arguing the heart of the case.
Specialty separation
The onset of the pandemic has generated warm feelings from the general public toward the healthcare professional that ends up on the receiving end of more malpractice lawsuits than any other profession: registered nurses.
Could it be that nurses begin to see more sympathetic juries while physicians, who get sued second-most to nurses, will receive stricter treatment from juries who may not see them as being on the frontline as much as nurses? It is definitely a theory that many industry professionals are keeping an eye on.
These trends would take months, if not years, to identify, so firms need to keep a real close eye on out-of-state rulings at least through the end of 2023.
Already outlining case strategy based on these possible trends is the only way to be proactive as waiting too late and reacting to judgment trends may be a multi-million-dollar mistake.
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