More than one in three U.S. physicians will face a medical malpractice lawsuit in their careers. As the role of advanced practice clinicians such as nurse practitioners as primary caregivers continues to grow, so too will their exposure to medical malpractice litigation. Therefore, health care providers may benefit from staying versed in the following key shifts in medical malpractice litigation:

1. Demographic shifts change courtroom dynamics. More than half of Americans are now Millennials or younger (Gen Z). As the population shifts toward these younger generations, so must litigation strategy shift to account for their views.

In preparing to defend a medical malpractice action, the defense team must evaluate whether juries will not only consider the health care provider, attorney, and medical experts to be skilled, experienced, and knowledgeable, but also whether these participants are reflective of the community, relatable, trustworthy, and credible.

2. Medical mistrust meets misinformation-inspired mistrust. With the public mistrust of medical science surging during the pandemic, the paradigm may have shifted. We no longer see the “halo effect” (cognitive bias in which our overall impression of a person positively influences how we feel and think about their character) we witnessed during the latter half of 2020 stemming from our admiration for health care providers battling COVID-19. On the contrary, the current public mistrust in medical science may manifest itself in a “horn effect” (cognitive bias in which our overall impression of a person negatively influences how we feel and think about their character) the effect of which is a conscious rejection of the evidence or applicable the law because the jury wants to send a message to society, or because applying existing law conflicts with their sense of justice, morality, or fairness. The defense team must prepare for these possibilities when formulating their trial strategy and take steps to focus the jury back on the reliable science of medicine as it applies to the matter before them.

3. Trial delays turn attention to alternative dispute resolution. Studies indicate state and local courts across the U.S. saw their already difficult-to-manage case backlog increase by approximately one-third as a result of the global pandemic. The overall impact of the increased backlog is to further delay resolution of these matters.

As a result, there is a growing movement toward alternative dispute resolution (ADR), such as mediation, when warranted by the facts and circumstances of the matter at hand, and by the desire of the health care provider to return to caring for patients free from the burden of an unresolved claim.

ADR presents certain advantages over a trial. It is confidential, less expensive, can be scheduled far more quickly, and is less time-consuming. It also spares the parties at least some of the upsets and disruptions a trial may impose. However, resolution at mediation means that regardless of the merits of their case, the parties relinquish their day in court. Nonetheless, since resolution at mediation is completely controlled by the participants, the health care provider does not surrender anything by simply agreeing to participate.

Unless court-ordered, pursuing resolution through ADR should ultimately be the health care provider’s decision in consultation with their counsel and carrier. A good medical malpractice carrier will support the health care provider’s desire to vigorously defend their care, and effectively prepare the provider for trial.

4. Social inflation impacts jury awards. The average cost to resolve a claim (severity) has been rising for decades. In 2021, the average cost to resolve a claim handled by The Doctors Company increased 61 percent to $115,000, compared with $70,000 in 2007. Some of the major factors driving this social inflation in the U.S. today include the erosion of tort reform, litigation funding by plaintiffs, distrust of corporations, and large verdicts.

Lawsuits are expensive. Plaintiffs are better funded and more willing to spend greater amounts to “work up” their cases than ever before. This results in the need for greater expenditures by the defendants to counter plaintiff spending.

Like it or not, large health care provider groups or corporations are often portrayed as having “deep pockets” and as prioritizing “profits over people.” This negative portrayal may lead juries to ignore the care given by individual health care professionals and award large sums to plaintiffs because “the corporation has plenty of money” or to “send a message” to the corporation. The defense team must not only be aware of this risk but must develop strategies to counter it.

The multitrillion-dollar deficit, the internet billionaire, the $500 million athlete: We’ve become desensitized to the value of a dollar. Thus, jurors may not be offended when the plaintiff demands exorbitant figures at trial, and in fact are more willing than ever to award excessive amounts.

While social inflation isn’t new, recent accelerations mean we’re now seeing larger jury verdicts as well as larger settlement demands. Whether this trend will dissipate remains to be seen, but it is a factor for health care providers to consider when they weigh their legal options. The defense team must form a comprehensive counter to plaintiff’s damage allegations and educate the jury on the true value of a dollar.

Strategies for combating these challenges

In this new era of delayed trials, potential juror mistrust of medical science, and social inflation the following warrant consideration:

• Take advantage of pretrial preparation. The Doctors Company, for example, offers Surviving Litigation Seminars to its members as well as peer support throughout the litigation process.
• Retain an attorney who understands juror predispositions, is on board with selecting experts with whom jurors can identify, and reduces the risk of social inflation by presenting a comprehensive damages defense.
• If you prefer not to go to trial, consider methods of ADR such as mediation, when warranted by the facts and circumstances of the matter at issue, to facilitate a speedier and perhaps more favorable claim resolution.
• Select a medical malpractice insurer with a proven track record of defending the practice of good medicine.

Marco Spadacenta is senior vice president of claims, The Doctors Company and TDC Group.

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