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In the 1996 film “As Good as It Gets,” the character played by Helen Hunt, blaming her HMO for the poor medical care her son has gotten, describes the company with distinctly R-rated epithets. Her son’s new doctor sympathizes: “That’s OK. Actually, I think that’s their technical name.” “The people in the theater cheered,” remembers Tom Packer, a San Francisco health care defense lawyer. The bad news for HMOs is that jurors are likely to bring these unfriendly attitudes with them into court, according to The National Law Journal/DecisionQuest Annual Juror Outlook Survey. Although many of the arguments of tort reform advocates figure prominently in the attitudes of potential jurors, it seems clear that HMOs have a lot to worry about in court, particularly if Congress revives the patients’ bill of rights, set aside after Sept. 11. “There’s a bias out there against HMOs,” says Packer, a partner in the San Francisco office of Gordon & Rees who chairs the medical liability committee of the Defense Research Institute. The juror survey results agree. A little more than half of respondents (53 percent) said they would be likely to vote for the plaintiff in a case suing an HMO or hospital for a medical mistake, without being told anything about the case. Only 8 percent said they would favor the defendant. In fact, more people said they were likely to side with the plaintiff against a hospital or HMO than a tobacco company (28 percent) or a drug company (47 percent). Only asbestos manufacturers faced a tougher crowd, with 64 percent saying they would likely side with the plaintiff in an asbestos case. And four in five (81 percent) agree that “it is important that people have the right to sue doctors, hospitals and HMOs if they feel that they have been the victim of medical malpractice.” Seven in ten (71 percent) think insurance companies “often try to get out of legitimate claims.” Two-thirds (67 percent) said they would support a patients’ bill of rights “only if it did not restrict a patient’s right to collect money damages if they believe that they have been harmed because an HMO refused to pay for a medical treatment.” Almost as many (61 percent) believe that HMOs and the managed care industry have caused a decline in medical care in the United States. “In a medical malpractice case, the more institutional the defendant, the more difficult it is for them,” says Michael Biek, Ph.D., a trial consultant with DecisionQuest, who analyzed the survey data. “An HMO is in a deeper hole than a hospital. A hospital is in a deeper hole than a clinic. And a clinic’s in a deeper hole than a doctor,” he says. Once a plaintiff proves liability, the survey shows many jurors may be willing to award significant verdicts. For example, among respondents who attempted to put a value on the loss of an arm or leg, half (52 percent) said they would award at least $1 million, while 9 percent valued the injury at more than $10 million. The news is not all bad for health care defendants, however. Juror attitudes are often complex, even contradictory, says Biek of DecisionQuest. Despite the solid majority supporting the right to sue hospitals and HMOs, half (53 percent) agree that there should be limits on the right to sue doctors, hospitals and HMOs. Nearly as many (45 percent) agree that “the real problem with the health care situation in the United States is that there are too many lawsuits.” SPILLED COFFEE And they’re not talking about “As Good as it Gets,” “The Verdict,” “Erin Brockovich” or other anti-corporate legal movies during voir dire. What’s on juror’s minds? Eight years after the verdict, that famously hot cup of spilled McDonald’s coffee continues to capture the imaginations of jurors, in all kinds of cases — including medical malpractice cases — although plaintiffs’ and defense lawyers agree that jurors’ understanding of that case is hazy, if not distorted. More than eight in ten (83 percent) had some awareness of the case. Of those, 45 percent thought the jury made a bad decision. Just 7 percent thought the McDonald’s jury made a good decision. So it is perhaps no surprise that more than half (53 percent) agree that “most lawsuits these days are frivolous.” And lawyers say jurors are much more likely to give an individual doctor the benefit of the doubt in court, in contrast to impersonal institutions like HMOs, insurers and hospitals. In addition, two-thirds (68 percent) of respondents believe that “medical science is progressing faster than the law can keep up with it.” It’s an attitude that defendants can use to their advantage, says Joseph M. Fasi II, a defense lawyer with Peterson, Johnson & Murray in Milwaukee. “I’m always arguing that medicine is an art, not a science,” he says. “It’s always changing.” A jury will return a defense verdict, Fasi says, if it is convinced that the plaintiff’s case is based on a cutting-edge standard of care that did not exist at the time the plaintiff was injured. The demographic breakdowns were in line with the experience of medical malpractice lawyers. Survey respondents favoring plaintiffs were more likely to be poorer, younger and less educated than those who said they favored the defense. White jurors were more likely to favor the defense than black and Hispanic jurors. Even armed with jury-survey data, trial lawyers agree that picking a jury remains an art — one that can mean the difference between winning and losing a big case. “You can’t just say all people in X category favor the defendants,” says Stephen E. Erickson, a partner with Pegalis & Erickson in Lake Success, N.Y. “I think it’s important to try to engage the jurors in some kind of conversation rather than lecture to them about your case.” BIG VERDICT Erickson won a $115 million verdict in November, the biggest medical malpractice verdict in the country last year, on behalf of a 28-year-old single mother who suffered brain damage, the result, he convinced the jury, of negligent emergency room care. Evans v. St. Mary’s Hospital of Brooklyn, No. 91-4038 (New York Co., N.Y., Sup. Ct.). The case is in the post-trial motions stage. During voir dire, Erickson says he had to try to find jurors who would not be turned off from the start by his client’s history of drug abuse. “You have to address potential problems in your case with jurors up front,” he says. “You can’t just stick your head in the sand and hope it will go away.” The results of the fourth annual National Law Journal/DecisionQuest Juror Outlook Survey are drawn from a random, nationwide sample of 1,007 adults who were interviewed by telephone from Oct. 15 to Oct. 29, 2001.

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