One of the most common concerns of a health care professional being sued for medical negligence is whether the jury will understand the medicine. The jury has only several days to learn about medical procedures that took the defendant years of schooling and practice to perfect.

     

    The U.S. Court system recognizes that there are issues considered beyond the competence of the average juror to understand without assistance and allows for expert opinion testimony to aid the jury in its deliberations.

     

    But to further complicate matters for jurors is the fact that there is room in science for differing expert opinions. The recent criminal case of the Commonwealth of Massachusetts v. Woodward presented dramatically opposed expert opinion about what happened in the death of an infant who was emergently admitted to Boston's Children's Hospital. The Commonwealth alleged that the infant had died as a result of being violently shaken by the au pair caring for him. The defendant died that she had mistreated the child.

     

    Both sides agreed that Matthew Eappen died from a massive intracranial bleed. However, that's where the agreement ended, and the medical expert testimony diverged. As the trial court wrote, “The prosecutor’s experts attributed the hemorrhage to a combination of extraordinarily violent shaking and overpowering contact with a hard, flat surface, all occurring sometime on February 4, 1997. The defense experts ascribed the hemorrhage to a re-bleed in a clot formed about three weeks earlier, following a hitherto undetected injury.

     

    Because this was a criminal trial, the burden of proof was heaviest for the prosecution: beyond a reasonable doubt.” With extensive testimony from knowledgeable experts, the creation of at least a reasonable doubt seemed certain, and before the verdict, the popular press and much of the public was increasingly swayed by the expert testimony for the defense. However, the jury agreed with the prosecution's medical experts and convicted the defendant of second-degree murder.

     

    Why was there such a misperception about the probable outcome of the trial? The answer likely involves the jury‘s role in evaluating the credibility of witnesses. Often juries will hear evidence that directly conflicts on a central issue. To the simple question of, "Was there ice on the sidewalk?” the pedestrian who fell will respond, "Absolutely, yes." The landlord, “Absolutely not.” The jury must then decide which testimony to credit or disbelieve.

     

    The jury is instructed that, while the opinions of experts are allowed in court, the jury is not bound to accept the expert's testimony. Jurors must evaluate the medical experts and their testimony in the same manner as they would lay witnesses.

     

    This is also true in civil proceedings where medical malpractice claims are brought. But in civil proceedings, the parties have a different burden than merely establishing reasonable doubt in the minds of the jury. Instead, the standard for the jury to follow in a civil trial when considering whether the plaintiffs allegations are true is "more likely than not.”

     

    This makes the effective presentation of evidence in the medical expert who is testifying crucial to either side. First of all, the defendant physician must educate his or her lawyer about the medicine. This often requires a commitment of time and patience. Once educated, the lawyer will embark on a course of establishing a defense. Outside experts will be asked to review the case to determine if the standard of care was met. If they believe the care fell below the standard, then their criticisms will be reviewed and the defense team will determine if a second opinion should be sought, and one often is.

     

    When an expert renders a favorable review, the defense team determines how best to teach the jury the medical facts. In addition, both the defendant and the expert must prepare the defense attorney for the cross examination of the plaintiffs expert.  Having a medical expert who is a good teacher of lay people is essential. So experts who are initially sought to review a case are not necessarily asked to testify at trial. It's not just what's being said, but whether that person is credible, clear, and convincing.

     

    Another technique employed to teach the jury about the medicine is the use of visual aids called demonstrative evidence. This evidence can be as simple as blow-ups of pages from the medical record or as complex as computerized demonstrations of the actual procedure. One side can even use computers to research and present past testimony by the other side's expert that conflicts with his or her current testimony. If and how to use demonstrative evidence is a difficult strategic decision which will be discussed by the legal teams on numerous occasions. Too little explanation and the jury may not understand the medicine. Too much, and there is the risk of information overload.

     

    Lay people can understand the basic principles and the medical science, if it's explained well. Juries are actually quite sophisticated decision makers. They bring to the courtroom their individual common sense and perspectives about life. Through this filter, they analyze the credibility of witnesses and the feasibility and believability of the theories brought forth. In a civil case, 5/6th ‘of the jury must reach agreement to render a decision about negligence, causation, and damages. Thus there needs to be a consensus reached usually by 10 of 12 people from different walks of life, who have only known each other for the duration of that trial.

     

    The most reassuring aspect of the jury system, though, is the seriousness with which the jurors accept the responsibility to society. Whether the matter be civil or criminal, they respect the judge's instructions on the law, and most often are guided in their deliberations by this. For this reason, while the jury system reflects the imperfections of human nature, it also reflects its strength. And the overall experience of many plaintiffs, defendants, and their attorneys is that there is no fairer or better way to make these decisions.

     


    Can Juries Follow the Medicine?

    by Attorney Frank E. Reardon

    December 1997

    Healthcare Law, Litigation & Public Policy   Medical Licensure & Discipline ♦ Employment Board of Registration

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