Internabonal Journalof Law and Psychiatry, Vol. 14. pp. 215-222. Printed in the U.S.A All rights reserved
Jury Selection
1991
0160.2527191 53.00 + .OO Copyright 0 1991 Pergamon Press plc
in Malpractice
Suits:
An Investigation of Community Attitudes Toward Malpractice and Physicians Stanley L. Brodsky*, Ralph I. Knowles**, and George H. Herring*
Patrick R. Coffer***,
Trial lawyers recognize that jury selection in both civil and criminal actions is typically based on long-standing stereotypes, assumed to identify preexisting attitudes and biases. Women are said to be empathic; men are not. Accountants, engineers, and military officers are thought of as punitive and not people-oriented. Social workers, teachers, liberal Protestants, and most Jews are often described as good jurors for the defense in criminal cases and for the plaintiffs in civil cases. Catholics, fundamentalist Christians, and Orthodox Jews are not. Blinder (1982) asserts that trial lawyers who represent the state in criminal cases, and the defense in civil cases, should pick jurors with the “six Rs":religious, racist, rigid, righteous, Republican, and repressed. The problem with such assertions lies in the nature of stereotypes themselves. Stereotypes are gross groupings that may not reflect key aspects of individuals. Religion, occupation, age, or neighborhood by no means define juror biases. Attorneys who routinely assume juror predispositions from such data would often make incorrect judgements. In a field study of trial attorney performance, Zeisel and Diamond (1978) found that most prosecution and defense attorneys made frequent errors in jury selection. The prosecution made many more errors in striking jurors, because more jurors began with proprosecution attitudes. Thus, even a random selection of strikes eliminated proprosecution jurors more frequently than prodefense jurors. The Zeisel and Diamond results emphasize the importance of the base rates of predisposing attitudes in any community from which a jury may be drawn. After all, if a community has proplaintiff or prodefense attitudes prior to any presentation of facts, then the most sophisticated and scientific jury selection techniques will be useless on both sides. Preexisting attitudes vary considerably with the kind of case being tried. Persons accused of murdering police officers, for example, are likely to have higher base rates of presumed guilt than individuals accused of less emotional and more ordinary offenses. *Department
of Psychology,
**3950 IBM Tower, ***Department 0213.
The University
1201 W. Peachtree
of Political
Science,
of Alabama,
St., NE, Atlanta, The University 215
Box 870348, Tuscaloosa,
AL 35487.0348.
GA 30309.
of Alabama,
Box 870213,
Tuscaloosa,
AL 35487-
216
STANLEY
L. BRODSKY
et al.
Neitzel and Dillehay (1986) have pointed out that the knowledge base from the mental health professions may permit extrapolation from generic psychological theory and research to the courtroom setting. This extrapolation can take the form of psychological assessment of the interpersonal processes operating in legal events as well as studying the antecedent psychological predispositions of the participants through means such as jury selection. Neitzel and Dillehay further argued that mental health knowledge is especially applicable in detection of juror bias and negative predispositions, and subsequent deselection of jurors with these characteristics. Considerable evidence exists to suggest that potential jurors do conceal their biases as they answer voir dire questions and act as much to maintain their self-esteem as to be fully honest (Broeder, 1965). One specific answer to the question of how one detects such biases and dishonesty has been offered by Hans and Vidmar (1982) who hold that: Real world trials are complex, and jurors are exposed to idiosyncratic stimulus arrays in the form of trial evidence that may evoke prejudices that can be best uncovered by asking jurors about their behavioral intentions for the case at hand. (p. 59) This procedure of asking about behavioral intentions and predisposition was followed in the present study, which investigated jury selection in the trial of physicians accused of malpractice. The history of medical malpractice may be traced in English law to the Medical Act of 1511 “ . . . which provided that none should practice physic or surgery (except graduates of Oxford or Cambridge) unless licensed by the Bishop of his diocese” (Martin, 1973, p. 1). The College of Physicians was established by Royal Decree shortly after, in 1518, followed by the establishment of the united Company of Barber-Surgeons in 1540. The need for accountability of physicians was emphasized in 1544 in the Acts of Henry the VIII, which stated in part “ . . . for although (the) craft of surgeons have small cunning, yet they will take great sums of money, and do little therefore and by reason thereof, they do oftentimes impair and harm their patients, rather than do them good” (Harney, 1973, p. iii). A series of specific standards followed in order to define both qualified practitioners and the qualified practice of medicine and surgery. The roots of the Law of Tort for medical malpractice have been traced from these early origins to more contemporary applications in tortious liability for medical negligence within the past hundred years (Martin, 1973). Malpractice injuries have been compensated by agencies of the government in New Zealand, Sweden, and China (LaCava, 1989; McGregor, 1989). American medical malpractice law and legal actions have been more extensive than most other countries (see, for example, Simone, 1989) and have had ripple effects in Europe as well (Grossen & Guillod, 1983). The present study considered jury selection for the trial of physicians accused of malpractice. Attitudes toward physicians in general have been surveyed in national samples. In a Louis Harris Poll (Eastman, 1978) of 1,503 Americans, a distinct minority of 30% were critical and unhappy with physi-
JURY SELECTION
IN MALPRACTICE
SUITS
217
cians’ services. The remaining majority were happy with their physicians. Who are these happy and unhappy patients? At this point, we turn to local studies. In one investigation of gender and educational factors in 1,458 Manhattan residents (Janus, Janus, & Sharrard, 1981), women were found to be more negative than men toward physicians. They tended to see physicians as less personal and less well-trained than did men. In addition more high school graduates were negative toward their physicians than were college students and college graduates. A study of Alabama citizens found strong support for their doctors. The Capstone Poll of the University of Alabama (Cotter, 1982a, 1982b) utilized a random dialing telephone survey of 423 Alabamians and reported that 92% of Alabamians had a great deal of confidence in their own doctors. Eighty-six percent felt that most Alabama doctors were competent; 14% disagreed. The present poll inquired about the causes of malpractice suits, an important issue in assessing predisposing attitudes. Method
A random digit-dialed survey was conducted of homes with telephones in a southern county with a population of about 135,000. Before any survey questions were asked, the callers identified themselves as employees of a wellknown statewide poll, and then asked two qualification questions. If the respondents were working with physicians, were family of physicians, or otherwise were close to physicians, or had been notified of jury duty, no further questions were asked. In addition, only United States citizens who were registered voters were queried. These screening questions eliminated 43 respondents. Four additional subjects declined to participate. A final number of 301 subjects were interviewed. This sample consisted of 58.1 Vo females and 41.9% males, and had 74.6% white respondents, 24.1% black respondents, and 1.3% other racial groups. The sample closely paralleled the demographic characteristics of the county. The modal age was in the range 40-49 and the modal education was completion of high school (25.4%), although substantial numbers reported some college (22.7%) or completion of graduate or professional school (10.2%). The modal income was in the range of $15,000-20,000 per year, with a flat distribution; 14.5% reported less than $5,000 income and 10.9% reported income over $40,000. When asked to describe their occupations, 41.2% reported a blue collar occupation, 33.7% reported a white collar job, 16.8% were students, and the remaining 8.3% were either homemakers or gave unusable answers. The telephone survey items consisted of three parts. The first part was a 20 item, Likert-type scale of Attitudes Toward Physicians and Malpractice (see Table 1). These four-point items rated attitudes from strongly agree to strongly disagree on items relating to physicians’ competence, accountability, local quality, and responsibility for malpractice suits. Because the pending case that led to this research was injury during childbirth, an additional 30 items were presented about the respondents’ experience with and opinions about obstetricians, childbirth, physician’s versus patients’ responsibilities in following procedures, and judged amount of awards appropriate for hypothetical physician
The Attitudes
TABLE 1 Toward Physicians and Malpractice
Scale
Percentages Strongly Agree Agree Doctors rarely make mistakes in treating their patients. Doctors tend to have more patients than they can adequately care for. Most doctors (in this area) really know what they are doing. Doctors have a duty to make sure that their patients know what the responsibilities of patients are. 5. Doctors do not spend enough time helping people understand their illness. 6. Doctors should be held accountable for the mistakes they make. 7. It is a doctor’s responsibility to see that their patients in hospitals are receiving the right treatment. 8. A person should be able to trust their doctor to give them the right care. 9 It is wrong to punish an otherwise good doctor for making one mistake, no matter the consequences of this mistake. 10 Doctors in this area are as good as those found elsewhere. 11 If I needed a doctor, I would not hesitate to go to one in this area. 12. Doctors associated with big medical schools are better doctors than those found in this area. 13. Doctors in this area are more concerned about money than they are with the welfare of their patients. 14. Jury awards against doctors for malpractice almost always are paid by insurance companies. 15. Patient greed is the major reason why the number of malpractice suits have increased. 16. The cost of malpractice insurance is a major reason why the cost of health care is so high. 17. In most malpractice suits, the doctor is actually negligent or in the wrong. 18. Most financial awards against doctors in malpractice suits are too high. 19. When patients sue their doctor, they tend to get greedy in how much they ask for. 20. No amount of money adequately compensates a person who is permanently paralyzed as a result of a doctor’s mistake. 218
of Responses Strongly Disagree Disagree
4.3%
49.3%
41.8%
4.6%
10.3%
67.3%
21 .O%
1.4%
5.4%
77.6%
15.9%
1 1 o/o
15.8%
75.0%
9.2%
0.0%
1 1 .50/o
59.4%
28.8%
0.3%
15.2%
73.1 o/o
11 .70/o
0.0%
23.2%
75.2%
1 .30/o
0.3%
25.2%
74.2%
0.7%
0.0%
2.9%
51.1%
41.2%
4.8%
7.7%
68.2%
21.2%
2.9%
7.5%
83.2%
7.9%
5.9%
40.0%
51.8%
2.4%
5.4%
28.0%
64.8%
1 .90/o
4.0%
81.7%
13.9%
0.4%
5.3%
56.4%
36.7%
1 .60/o
7.2%
70.5%
30.9%
1 .40/o
1.2%
44.0%
54.1%
0.8%
6.0%
69.0%
24.3%
0.7%
6.2%
71.6%
21.1%
1 1 o/o
18.8%
67.9%
13.0%
0.4%
1 .40/o
JURY SELECTION
IN MALPRACTICE
errors. A final fifteen items addressed demographic spondents. ’
SUITS
characteristics
219
of the re-
Results and Discussion
The responding citizens were about evenly split on agreeing and disagreeing that doctors rarely make mistakes; 53.6% indicated strongly agree or agree and 46.4% either disagreed or strongly disagreed. When asked if mistakes are made, whether an otherwise good doctor should be punished, about the same 50-50 result was found. The full breakdown of responses is shown in Table 1. Strongly favorable attitudes towards health care, doctors, obstetricians, hospitals, nurses, ambulance services, and the quality of services were found. The range of favorability ratings was from 65% up to 92% with obstetricians receiving favorability ratings by 67% of the subjects as good or excellent. Most respondents judged obstetricians as neither better nor worse than internists, surgeons, and family doctors. Positive attitudes towards obstetrical care were further supported when citizens were asked about their own, or immediate family member’s experiences with OB-GYN services. Half had some contact and 90% of these replies indicated satisfactory services. It made a substantial difference in the ratings if the respondents’ medical care was offered by a public clinic or by private doctors in group or individual practice. While few differences emerged between the group and individual practice clients, the clinic patients had less satisfactory experiences than the other groups. Indeed throughout the survey, clinic patients were more harshly judgmental of doctors and more supportive of high awards and plaintiffs’ findings in malpractice suits. Several questions were posed to assess the feelings of these citizens about malpractice suits. Serious concerns about false claims and patients’ greed were reported; however, it was equally apparent that almost half of the respondents were ready to agree that doctors are usually at fault in malpractice actions. Furthermore, 36% agreed that most birth injuries resulted from inadequate obstetrical care and 84% believed that inadequate care caused at least some birth injuries. Most people surveyed rated physicians favorably, but were reasonably open to attributing blame to the physician. Five questions were asked to determine the willingness to award different amounts to a child paralyzed as a result of a doctor’s mistake during delivery. Approximately 87% of the subjects believed that somewhere between one hundred thousand dollars and one miliion dollars was about right. Approximately 79% of the subjects understood the nature of a Caesarian section and 71 Vo knew what a breech position was. More white than black subjects had such knowledge. Furthermore, clinic patients and blue collar workers had less knowledge than the other subjects. The subjects familiar with Caesarian sections and breech positions were most conservative in amount of award. They also were consistently more supportive of doctors and health ‘The full questionnaire and reprints may be obtained Department, P.O. Box 870348, The University of Alabama,
by writing to Stanley L. Brodsky, Tuscaloosa, AL 35487-0348.
Psychology
STANLEY
220
L. BRODSKY
et al
care. The respondents who were most critical of doctors and least reluctant to consider high awards, were more likely to be poor, black, less educated, and living in urban rather than rural areas. A factor analysis of the data was undertaken to clarify the common clusters of items and traits. Two major independent factors and four minor factors were found, and they are presented with the highest varimax loadings. The four minor factors, in particular, need to be interpreted with caution because of their potential instability.
Factor I. Knowledge versus Ignorance The knowledge factor emerged from four items about Caesarian sections and childbirth, all of which had loadings of .87 to .90. Other items on this factor included being urban (.58), white (.43), more educated (.61), and living in this area less than five years (.54). The “all children should be born naturally and without surgery, even if there is risk of injury” item is loaded heavily (.55) on “ignorance” in this factor.
Factor 2. Attitudes
To ward Health Care
This factor is defined by evaluative responses to the ratings of doctors (.66), hospitals (.72), and obstetricians (.57) particularly when county services are assessed.
Factor 3. OB and G YN Exposure This factor is defined by whether there has been contact with obstetric or gynecological services (.89) or if anyone with whom they have had close contact has had a Caesarian section (.52).
Factor 4. Amount
of Award
The judgment of amount of award (.78) was the highest loaded item on this factor. This factor was not unilaterally predicted by any demographic element. The award component emerged as a factor altogether separate from other variables.
Factor 5. Doctors’ and Patients’ Responsibilities A consistent pattern was found on this issue. Individuals tended to assign responsibilities to either doctors or patients (.60), and then react to other issues accordingly. Because juries eventually have to confront this responsibility, this factor could be usefully explored with an expanded pool of items to identify juror predispositions. One such additional item might be “a woman with a problem pregnancy should know on her own when to come to the hospital.”
Factor 6. Unequivocal Support of Physicians One dimension was the tendency to give absolute support to doctors. The item most heavily loaded (.61) on this factor was “patient greed is the major reason why the number of malpractice suits have increased.” Rural residents
JURY SELECTION
IN MALPRACTICE
SUITS
221
were prone to answer in this direction (.3 1). Plaintiffs’ attorneys might attempt to identify people who unequivocally support physicians and strike them from the jury. Such jurors are potentially resistant to listening to evidence that conflicts with their belief systems about the infallibility of physicians. These prophysician individuals are the exception to the general openness to finding physicians guilty of malpractice. Conclusion The present study followed the suggestions of Hans and Vidmar (1982) to discard the search for personality and demographic correlates of bias in potential jurors, and instead to look toward situational and evidentiary variables related to the case at hand. In the instance of medical malpractice, inquiries about attitudes toward the alleged offense and toward physicians may tap directly into substantive issues to be tried. An important caution must be given about the emphasis placed on this and indeed all jury selection procedures. When the evidence presented during the trial is clear and compelling for either plaintiffs or defendants, then predispositions and biases assume a minimal role (Kaplan, 1982). Only when the evidence is equal and the findings nonobvious and equivocal, do factors assessed in jury selection assume greater importance. It would be presumptuous to believe that community surveys of attitudes towards physicians would be by themselves a primary factor in malpractice trial outcomes. Nevertheless wide differences do exist among individuals in their beliefs about the quality of medical care. Unlike many other social issues in which many people are undecided, medical care and malpractice issues evoke strong emotions, which can be considered predispositions toward plaintiff or defendant arguments. Some of the present findings, such as rural versus urban differences, may well be idiosyncratic to this particular sample. Other findings, however, seem to point toward issues to be considered in most malpractice jury selection. At a minimum, trial attorneys should attend to the differential attribution of responsibility to patients and physicians and to unequivocal support of physicians, factors that emerged in the present investigation. References Blinder, M. (1982). Psychiatry in the everyday pracfice of law (2nd ed.). Rochester, NJ: The Lawyers Co-Operative Publishing Company. Broeder, D. W. (1965). Voir dire examinations: An Empirical Study. Southern California Law Review, 38, 503-528. Cotter, P. R. (1982a). Public attitudes toward health care in Alabama. Journal of the Medical Association, State of Alabama, 52 (3), 6-20. Cotter, P. R. (1982b). Alabamians’ attitudes toward health care. University, AL: Capstone Poll, Center for Administrative and Policy Studies, The University of Alabama. Eastman, M. (1978). What the public thinks about health care . . according to Harris. American Pharmacy, 18, 36-37. Grossen, J.-M., & Guillod, 0. (1983). Medical malpractice law: American influence in Europe? Boston College International and Comparative Law Review, 6, l-21. Hans, V. P., & Vidmar, N. (1982). Jury selection. In N. L. Kerr & R. M. Bray (Eds.), Thepsychology of the courtroom. New York: Academic Press.
222
STANLEY
L. BRODSKY et al
Harney, D. M. (1973). Medical malpractice. Indianapolis, IN: Allen Smith. Janus, C. L., Janus, S. S., & Sharrard, G. P. (1981). Lay attitudes toward physicians and medical technology. Mount Sinai Journal of Medicine, 48, 345-349. Kaplan, M. F. (1982). Cognitive processes in the individual juror. In N. L. Kerr & R. M. Bray (Eds.), The Psychology of the courtroom. New York: Academic Press. LaCava, F. W. (1989). Medical malpractice case-Chinese style. Res Gestae, 32, 547. Martin, C. R. A. (1973). Law relating to medicalpractice. London: Pitman Medical. McGregor, M. A. (1989). Medical injury compensation under the New Zealand Accident Compensation Scheme: An assessment compared to the Swedish Medical Compensation Scheme. Professional Negligence, 5, 141-157. Nietzel, M. T., & Dillehay, R. C. (1986). Psychological consultation in the courtroom. Elmsford, NY: Pergamon Press. Simone, N. M. (1989). Medical malpractice litigation: A comparative analysis of United States and Great Britain. Suffolk Transnational Law Journal, 12, 578-602. Zeisel, H., & Diamond, S. (1978). The effect of peremptory challenges on jury and verdict: An experiment in a federal district court. Stanford Law Review, 30, 491-531.
Jury Selection
1991
0160.2527191 53.00 + .OO Copyright 0 1991 Pergamon Press plc
in Malpractice
Suits:
An Investigation of Community Attitudes Toward Malpractice and Physicians Stanley L. Brodsky*, Ralph I. Knowles**, and George H. Herring*
Patrick R. Coffer***,
Trial lawyers recognize that jury selection in both civil and criminal actions is typically based on long-standing stereotypes, assumed to identify preexisting attitudes and biases. Women are said to be empathic; men are not. Accountants, engineers, and military officers are thought of as punitive and not people-oriented. Social workers, teachers, liberal Protestants, and most Jews are often described as good jurors for the defense in criminal cases and for the plaintiffs in civil cases. Catholics, fundamentalist Christians, and Orthodox Jews are not. Blinder (1982) asserts that trial lawyers who represent the state in criminal cases, and the defense in civil cases, should pick jurors with the “six Rs":religious, racist, rigid, righteous, Republican, and repressed. The problem with such assertions lies in the nature of stereotypes themselves. Stereotypes are gross groupings that may not reflect key aspects of individuals. Religion, occupation, age, or neighborhood by no means define juror biases. Attorneys who routinely assume juror predispositions from such data would often make incorrect judgements. In a field study of trial attorney performance, Zeisel and Diamond (1978) found that most prosecution and defense attorneys made frequent errors in jury selection. The prosecution made many more errors in striking jurors, because more jurors began with proprosecution attitudes. Thus, even a random selection of strikes eliminated proprosecution jurors more frequently than prodefense jurors. The Zeisel and Diamond results emphasize the importance of the base rates of predisposing attitudes in any community from which a jury may be drawn. After all, if a community has proplaintiff or prodefense attitudes prior to any presentation of facts, then the most sophisticated and scientific jury selection techniques will be useless on both sides. Preexisting attitudes vary considerably with the kind of case being tried. Persons accused of murdering police officers, for example, are likely to have higher base rates of presumed guilt than individuals accused of less emotional and more ordinary offenses. *Department
of Psychology,
**3950 IBM Tower, ***Department 0213.
The University
1201 W. Peachtree
of Political
Science,
of Alabama,
St., NE, Atlanta, The University 215
Box 870348, Tuscaloosa,
AL 35487.0348.
GA 30309.
of Alabama,
Box 870213,
Tuscaloosa,
AL 35487-
216
STANLEY
L. BRODSKY
et al.
Neitzel and Dillehay (1986) have pointed out that the knowledge base from the mental health professions may permit extrapolation from generic psychological theory and research to the courtroom setting. This extrapolation can take the form of psychological assessment of the interpersonal processes operating in legal events as well as studying the antecedent psychological predispositions of the participants through means such as jury selection. Neitzel and Dillehay further argued that mental health knowledge is especially applicable in detection of juror bias and negative predispositions, and subsequent deselection of jurors with these characteristics. Considerable evidence exists to suggest that potential jurors do conceal their biases as they answer voir dire questions and act as much to maintain their self-esteem as to be fully honest (Broeder, 1965). One specific answer to the question of how one detects such biases and dishonesty has been offered by Hans and Vidmar (1982) who hold that: Real world trials are complex, and jurors are exposed to idiosyncratic stimulus arrays in the form of trial evidence that may evoke prejudices that can be best uncovered by asking jurors about their behavioral intentions for the case at hand. (p. 59) This procedure of asking about behavioral intentions and predisposition was followed in the present study, which investigated jury selection in the trial of physicians accused of malpractice. The history of medical malpractice may be traced in English law to the Medical Act of 1511 “ . . . which provided that none should practice physic or surgery (except graduates of Oxford or Cambridge) unless licensed by the Bishop of his diocese” (Martin, 1973, p. 1). The College of Physicians was established by Royal Decree shortly after, in 1518, followed by the establishment of the united Company of Barber-Surgeons in 1540. The need for accountability of physicians was emphasized in 1544 in the Acts of Henry the VIII, which stated in part “ . . . for although (the) craft of surgeons have small cunning, yet they will take great sums of money, and do little therefore and by reason thereof, they do oftentimes impair and harm their patients, rather than do them good” (Harney, 1973, p. iii). A series of specific standards followed in order to define both qualified practitioners and the qualified practice of medicine and surgery. The roots of the Law of Tort for medical malpractice have been traced from these early origins to more contemporary applications in tortious liability for medical negligence within the past hundred years (Martin, 1973). Malpractice injuries have been compensated by agencies of the government in New Zealand, Sweden, and China (LaCava, 1989; McGregor, 1989). American medical malpractice law and legal actions have been more extensive than most other countries (see, for example, Simone, 1989) and have had ripple effects in Europe as well (Grossen & Guillod, 1983). The present study considered jury selection for the trial of physicians accused of malpractice. Attitudes toward physicians in general have been surveyed in national samples. In a Louis Harris Poll (Eastman, 1978) of 1,503 Americans, a distinct minority of 30% were critical and unhappy with physi-
JURY SELECTION
IN MALPRACTICE
SUITS
217
cians’ services. The remaining majority were happy with their physicians. Who are these happy and unhappy patients? At this point, we turn to local studies. In one investigation of gender and educational factors in 1,458 Manhattan residents (Janus, Janus, & Sharrard, 1981), women were found to be more negative than men toward physicians. They tended to see physicians as less personal and less well-trained than did men. In addition more high school graduates were negative toward their physicians than were college students and college graduates. A study of Alabama citizens found strong support for their doctors. The Capstone Poll of the University of Alabama (Cotter, 1982a, 1982b) utilized a random dialing telephone survey of 423 Alabamians and reported that 92% of Alabamians had a great deal of confidence in their own doctors. Eighty-six percent felt that most Alabama doctors were competent; 14% disagreed. The present poll inquired about the causes of malpractice suits, an important issue in assessing predisposing attitudes. Method
A random digit-dialed survey was conducted of homes with telephones in a southern county with a population of about 135,000. Before any survey questions were asked, the callers identified themselves as employees of a wellknown statewide poll, and then asked two qualification questions. If the respondents were working with physicians, were family of physicians, or otherwise were close to physicians, or had been notified of jury duty, no further questions were asked. In addition, only United States citizens who were registered voters were queried. These screening questions eliminated 43 respondents. Four additional subjects declined to participate. A final number of 301 subjects were interviewed. This sample consisted of 58.1 Vo females and 41.9% males, and had 74.6% white respondents, 24.1% black respondents, and 1.3% other racial groups. The sample closely paralleled the demographic characteristics of the county. The modal age was in the range 40-49 and the modal education was completion of high school (25.4%), although substantial numbers reported some college (22.7%) or completion of graduate or professional school (10.2%). The modal income was in the range of $15,000-20,000 per year, with a flat distribution; 14.5% reported less than $5,000 income and 10.9% reported income over $40,000. When asked to describe their occupations, 41.2% reported a blue collar occupation, 33.7% reported a white collar job, 16.8% were students, and the remaining 8.3% were either homemakers or gave unusable answers. The telephone survey items consisted of three parts. The first part was a 20 item, Likert-type scale of Attitudes Toward Physicians and Malpractice (see Table 1). These four-point items rated attitudes from strongly agree to strongly disagree on items relating to physicians’ competence, accountability, local quality, and responsibility for malpractice suits. Because the pending case that led to this research was injury during childbirth, an additional 30 items were presented about the respondents’ experience with and opinions about obstetricians, childbirth, physician’s versus patients’ responsibilities in following procedures, and judged amount of awards appropriate for hypothetical physician
The Attitudes
TABLE 1 Toward Physicians and Malpractice
Scale
Percentages Strongly Agree Agree Doctors rarely make mistakes in treating their patients. Doctors tend to have more patients than they can adequately care for. Most doctors (in this area) really know what they are doing. Doctors have a duty to make sure that their patients know what the responsibilities of patients are. 5. Doctors do not spend enough time helping people understand their illness. 6. Doctors should be held accountable for the mistakes they make. 7. It is a doctor’s responsibility to see that their patients in hospitals are receiving the right treatment. 8. A person should be able to trust their doctor to give them the right care. 9 It is wrong to punish an otherwise good doctor for making one mistake, no matter the consequences of this mistake. 10 Doctors in this area are as good as those found elsewhere. 11 If I needed a doctor, I would not hesitate to go to one in this area. 12. Doctors associated with big medical schools are better doctors than those found in this area. 13. Doctors in this area are more concerned about money than they are with the welfare of their patients. 14. Jury awards against doctors for malpractice almost always are paid by insurance companies. 15. Patient greed is the major reason why the number of malpractice suits have increased. 16. The cost of malpractice insurance is a major reason why the cost of health care is so high. 17. In most malpractice suits, the doctor is actually negligent or in the wrong. 18. Most financial awards against doctors in malpractice suits are too high. 19. When patients sue their doctor, they tend to get greedy in how much they ask for. 20. No amount of money adequately compensates a person who is permanently paralyzed as a result of a doctor’s mistake. 218
of Responses Strongly Disagree Disagree
4.3%
49.3%
41.8%
4.6%
10.3%
67.3%
21 .O%
1.4%
5.4%
77.6%
15.9%
1 1 o/o
15.8%
75.0%
9.2%
0.0%
1 1 .50/o
59.4%
28.8%
0.3%
15.2%
73.1 o/o
11 .70/o
0.0%
23.2%
75.2%
1 .30/o
0.3%
25.2%
74.2%
0.7%
0.0%
2.9%
51.1%
41.2%
4.8%
7.7%
68.2%
21.2%
2.9%
7.5%
83.2%
7.9%
5.9%
40.0%
51.8%
2.4%
5.4%
28.0%
64.8%
1 .90/o
4.0%
81.7%
13.9%
0.4%
5.3%
56.4%
36.7%
1 .60/o
7.2%
70.5%
30.9%
1 .40/o
1.2%
44.0%
54.1%
0.8%
6.0%
69.0%
24.3%
0.7%
6.2%
71.6%
21.1%
1 1 o/o
18.8%
67.9%
13.0%
0.4%
1 .40/o
JURY SELECTION
IN MALPRACTICE
errors. A final fifteen items addressed demographic spondents. ’
SUITS
characteristics
219
of the re-
Results and Discussion
The responding citizens were about evenly split on agreeing and disagreeing that doctors rarely make mistakes; 53.6% indicated strongly agree or agree and 46.4% either disagreed or strongly disagreed. When asked if mistakes are made, whether an otherwise good doctor should be punished, about the same 50-50 result was found. The full breakdown of responses is shown in Table 1. Strongly favorable attitudes towards health care, doctors, obstetricians, hospitals, nurses, ambulance services, and the quality of services were found. The range of favorability ratings was from 65% up to 92% with obstetricians receiving favorability ratings by 67% of the subjects as good or excellent. Most respondents judged obstetricians as neither better nor worse than internists, surgeons, and family doctors. Positive attitudes towards obstetrical care were further supported when citizens were asked about their own, or immediate family member’s experiences with OB-GYN services. Half had some contact and 90% of these replies indicated satisfactory services. It made a substantial difference in the ratings if the respondents’ medical care was offered by a public clinic or by private doctors in group or individual practice. While few differences emerged between the group and individual practice clients, the clinic patients had less satisfactory experiences than the other groups. Indeed throughout the survey, clinic patients were more harshly judgmental of doctors and more supportive of high awards and plaintiffs’ findings in malpractice suits. Several questions were posed to assess the feelings of these citizens about malpractice suits. Serious concerns about false claims and patients’ greed were reported; however, it was equally apparent that almost half of the respondents were ready to agree that doctors are usually at fault in malpractice actions. Furthermore, 36% agreed that most birth injuries resulted from inadequate obstetrical care and 84% believed that inadequate care caused at least some birth injuries. Most people surveyed rated physicians favorably, but were reasonably open to attributing blame to the physician. Five questions were asked to determine the willingness to award different amounts to a child paralyzed as a result of a doctor’s mistake during delivery. Approximately 87% of the subjects believed that somewhere between one hundred thousand dollars and one miliion dollars was about right. Approximately 79% of the subjects understood the nature of a Caesarian section and 71 Vo knew what a breech position was. More white than black subjects had such knowledge. Furthermore, clinic patients and blue collar workers had less knowledge than the other subjects. The subjects familiar with Caesarian sections and breech positions were most conservative in amount of award. They also were consistently more supportive of doctors and health ‘The full questionnaire and reprints may be obtained Department, P.O. Box 870348, The University of Alabama,
by writing to Stanley L. Brodsky, Tuscaloosa, AL 35487-0348.
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care. The respondents who were most critical of doctors and least reluctant to consider high awards, were more likely to be poor, black, less educated, and living in urban rather than rural areas. A factor analysis of the data was undertaken to clarify the common clusters of items and traits. Two major independent factors and four minor factors were found, and they are presented with the highest varimax loadings. The four minor factors, in particular, need to be interpreted with caution because of their potential instability.
Factor I. Knowledge versus Ignorance The knowledge factor emerged from four items about Caesarian sections and childbirth, all of which had loadings of .87 to .90. Other items on this factor included being urban (.58), white (.43), more educated (.61), and living in this area less than five years (.54). The “all children should be born naturally and without surgery, even if there is risk of injury” item is loaded heavily (.55) on “ignorance” in this factor.
Factor 2. Attitudes
To ward Health Care
This factor is defined by evaluative responses to the ratings of doctors (.66), hospitals (.72), and obstetricians (.57) particularly when county services are assessed.
Factor 3. OB and G YN Exposure This factor is defined by whether there has been contact with obstetric or gynecological services (.89) or if anyone with whom they have had close contact has had a Caesarian section (.52).
Factor 4. Amount
of Award
The judgment of amount of award (.78) was the highest loaded item on this factor. This factor was not unilaterally predicted by any demographic element. The award component emerged as a factor altogether separate from other variables.
Factor 5. Doctors’ and Patients’ Responsibilities A consistent pattern was found on this issue. Individuals tended to assign responsibilities to either doctors or patients (.60), and then react to other issues accordingly. Because juries eventually have to confront this responsibility, this factor could be usefully explored with an expanded pool of items to identify juror predispositions. One such additional item might be “a woman with a problem pregnancy should know on her own when to come to the hospital.”
Factor 6. Unequivocal Support of Physicians One dimension was the tendency to give absolute support to doctors. The item most heavily loaded (.61) on this factor was “patient greed is the major reason why the number of malpractice suits have increased.” Rural residents
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were prone to answer in this direction (.3 1). Plaintiffs’ attorneys might attempt to identify people who unequivocally support physicians and strike them from the jury. Such jurors are potentially resistant to listening to evidence that conflicts with their belief systems about the infallibility of physicians. These prophysician individuals are the exception to the general openness to finding physicians guilty of malpractice. Conclusion The present study followed the suggestions of Hans and Vidmar (1982) to discard the search for personality and demographic correlates of bias in potential jurors, and instead to look toward situational and evidentiary variables related to the case at hand. In the instance of medical malpractice, inquiries about attitudes toward the alleged offense and toward physicians may tap directly into substantive issues to be tried. An important caution must be given about the emphasis placed on this and indeed all jury selection procedures. When the evidence presented during the trial is clear and compelling for either plaintiffs or defendants, then predispositions and biases assume a minimal role (Kaplan, 1982). Only when the evidence is equal and the findings nonobvious and equivocal, do factors assessed in jury selection assume greater importance. It would be presumptuous to believe that community surveys of attitudes towards physicians would be by themselves a primary factor in malpractice trial outcomes. Nevertheless wide differences do exist among individuals in their beliefs about the quality of medical care. Unlike many other social issues in which many people are undecided, medical care and malpractice issues evoke strong emotions, which can be considered predispositions toward plaintiff or defendant arguments. Some of the present findings, such as rural versus urban differences, may well be idiosyncratic to this particular sample. Other findings, however, seem to point toward issues to be considered in most malpractice jury selection. At a minimum, trial attorneys should attend to the differential attribution of responsibility to patients and physicians and to unequivocal support of physicians, factors that emerged in the present investigation. References Blinder, M. (1982). Psychiatry in the everyday pracfice of law (2nd ed.). Rochester, NJ: The Lawyers Co-Operative Publishing Company. Broeder, D. W. (1965). Voir dire examinations: An Empirical Study. Southern California Law Review, 38, 503-528. Cotter, P. R. (1982a). Public attitudes toward health care in Alabama. Journal of the Medical Association, State of Alabama, 52 (3), 6-20. Cotter, P. R. (1982b). Alabamians’ attitudes toward health care. University, AL: Capstone Poll, Center for Administrative and Policy Studies, The University of Alabama. Eastman, M. (1978). What the public thinks about health care . . according to Harris. American Pharmacy, 18, 36-37. Grossen, J.-M., & Guillod, 0. (1983). Medical malpractice law: American influence in Europe? Boston College International and Comparative Law Review, 6, l-21. Hans, V. P., & Vidmar, N. (1982). Jury selection. In N. L. Kerr & R. M. Bray (Eds.), Thepsychology of the courtroom. New York: Academic Press.
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Harney, D. M. (1973). Medical malpractice. Indianapolis, IN: Allen Smith. Janus, C. L., Janus, S. S., & Sharrard, G. P. (1981). Lay attitudes toward physicians and medical technology. Mount Sinai Journal of Medicine, 48, 345-349. Kaplan, M. F. (1982). Cognitive processes in the individual juror. In N. L. Kerr & R. M. Bray (Eds.), The Psychology of the courtroom. New York: Academic Press. LaCava, F. W. (1989). Medical malpractice case-Chinese style. Res Gestae, 32, 547. Martin, C. R. A. (1973). Law relating to medicalpractice. London: Pitman Medical. McGregor, M. A. (1989). Medical injury compensation under the New Zealand Accident Compensation Scheme: An assessment compared to the Swedish Medical Compensation Scheme. Professional Negligence, 5, 141-157. Nietzel, M. T., & Dillehay, R. C. (1986). Psychological consultation in the courtroom. Elmsford, NY: Pergamon Press. Simone, N. M. (1989). Medical malpractice litigation: A comparative analysis of United States and Great Britain. Suffolk Transnational Law Journal, 12, 578-602. Zeisel, H., & Diamond, S. (1978). The effect of peremptory challenges on jury and verdict: An experiment in a federal district court. Stanford Law Review, 30, 491-531.
