Having been an attorney or mediator in many medical malpractice cases, I know that most people see the plaintiff as its center. The plaintiff alleges to have been harmed by a physician who was trusted to do no harm. During discovery not only will the plaintiff’s private medical history be revealed to attorneys and experts but his or her entire life history, emotional state, income, hobbies, family details, and whatever else may lead to something relevant. Should the case go to trial, all of this very personal and sensitive information will be provided to the jury in open court. As I addressed in the first part of this series, the physician defendant has consequences of his or her own to manage, but they are different.
The job of plaintiff’s counsel is to help everyone in the case see the plaintiff as a real person who suffered real and specific harm. Defense counsel will do its best to counter that effort. Attorneys on both sides do their jobs better when they understand what the plaintiff is actually experiencing and what the plaintiff actually wants. A common assumption is that plaintiffs have physical pain and want money. This assumption is as oversimplified as it is untrue. The truth is that every plaintiff has suffered differently and wants something different. Recognizing these differences is key to understanding a plaintiff and resolving a case.
The Manifestation of Symptoms
The first emotion a plaintiff experiences is anger, and it is usually directed at the physician who caused the harm. Anger is expected, but what is less expected is betrayal. Most people believe that physicians do not make serious mistakes. They learned that from television shows where the most complicated diseases are diagnosed in one thirty-minute episode and commercials where there is a drug that cures every ailment. Patients place enormous trust and faith in their physicians. The old saying, “Trust me. I’m a doctor.” reflects how people generally view physicians. To say that patients trust physicians with their very lives is not an overstatement.
When patients believe that their trust was betrayed, they may feel foolish for having trusted so completely, as though their trust itself was the mistake they made. Underneath that feeling of foolishness is shame. Plaintiff’s attorneys are sometimes called ambulance chasers. When a plaintiff who already feels foolish for trusting a physician learns that the standard of care does not require perfection, that plaintiff may start to wonder whether he or she is simply being an opportunist. Friends do not help. When a plaintiff tells friends about the lawsuit, the first question is usually, “How much are you going to get” and not “What are you doing to get better?”
The Underlying Causes
Physical injury often brings a loss of independence, and that loss has more impact than the physical limitation itself. A plaintiff who becomes dependent on others for driving, for chores, for basic care, loses a part of his or her identity. For someone who was previously an independent, functioning adult, needing that kind of help can feel like evidence of diminished worth, even though the injury was caused by someone else. That loss of independence, combined with learning what the standard of care and acceptable risk actually mean, often leaves plaintiffs believing their case is less clear-cut than they expected. Many plaintiffs enter litigation believing physicians are held to a standard of near perfection. Learning otherwise reshapes what they expect from the case and from any resolution. That reshaping should not happen for the first time at a deposition, mediation table, or trial.
Knowledge Is the Cure
I have found that the plaintiff’s counsel who addresses these emotions early, rather than waiting for them to surface under pressure, gets a better result for the client. By recognizing all of these conflicting emotions in his or her client at the very beginning of representation, plaintiff’s counsel can discuss them with the plaintiff and provide reassurance that these feelings are normal responses. Providing knowledge about the standard of care, acceptable risk, and how the legal system is designed to compensate people who were harmed by others (not reward them for simply getting hurt or for bringing a lawsuit) can help the plaintiff move away from the subconscious self-blame and shame. Self-blame and shame make people minimize, apologize, or undermine their credibility when testifying. When the attorney provides the right treatment (counseling in this situation), the plaintiff can provide his or her best testimony.
Preparation is the key to managing misguided beliefs and strong emotions. A plaintiff who is not able to manage these symptoms will minimize, apologize, and undercut his or her own credibility on the stand. The goal of counsel is not to coach the client into a performance but to help the client present as what he or she actually is: a credible person who was harmed.
The first part of this series addressed what allows a physician defendant to walk into mediation and evaluate a resolution on its actual merits. The same principle applies here. When a party witness is prepared, honest, and emotionally grounded, a case resolves more fairly. Stated plainly, justice is best served when everyone is allowed to do their best. Part three of this series will address the mediator’s role in recognizing and addressing the latent symptoms of both parties.
Paul J. Molinaro, M.D., Esq. is a mediator and arbitrator with Alternative Resolution Centers specializing in medical malpractice, personal injury, and products liability. He can be reached at pmolinaro@arc4adr.com.