Litigation in the healthcare industry is growing, not only in the number of cases, but in its scope, frequency and stakes. Interestingly, many of the same types of healthcare cases have existed for decades. What has changed most is the scale – namely, increasing class-action certifications – which has caused settlement costs to skyrocket for insurers, medical device companies and others. Doctors are also suing insurance networks over payment and coverage. As a result, even healthcare giants are feeling the effects, which can also threaten the very existence of smaller companies.
Several of our pharmaceutical and healthcare clients often ask us, “What are the most recent trends in jurors’ attitudes toward healthcare, health insurance and medical device manufacturers?” In addition to the data we continually collect from our case-specific mock trials and focus groups, we also like to collect more general, nation-wide, survey data regarding juror eligibles’ relevant attitudes and experiences. Six of the key findings that emerged from our data are outlined below.
1) Jurors Are Skeptical of Insurance Company Motives
Health insurance companies are facing increasingly intense scrutiny, which can have an effect – direct or indirect – on public opinion. Our findings suggest that, as is the case with many big businesses, the public tends to be cynical about health insurers’ true motives.
While 28% of those polled were undecided, almost half (48%) believed insurers are driven solely by profit.
2) Jurors Are Even More Skeptical of Medical Device Companies
Medical device companies also remain under legal fire, particularly over intellectual property disputes and product liability claims. And, when it comes to juror attitudes, many find device companies to be under-regulated and untrustworthy.
The majority of mock jurors (62%) believe medical device manufacturers should see increased government regulation. (Interestingly, by contrast, only 32% of jurors desire stricter regulations on health insurance companies.) In Graph 3, the distrust for device manufacturers shows up in another way: 57% believe it likely that they routinely withhold information from the public.
This seemingly negative public perception of device manufacturers could have a strong effect on how jurors are likely to view these companies’ case narratives in litigation. Our data suggests many would find it difficult to trust they are getting “the whole truth” from medical device manufacturers.
3) Jurors Also Harbor a Distrust of Doctors and Hospitals
When once it was relatively unheard of for a doctor to take action against an insurer, class-action suits have emerged in recent years as a powerful weapon with which healthcare providers may express discontent – and receive compensation. Doctors, nearly anonymous as members of a class, are thus empowered to take on an offending insurer without fear of being removed from the insurer’s network in retaliation, or other such consequences.
Given the apparently negative view of health insurers, such insurers may feel at a significant disadvantage in facing the litigation onslaught coming from healthcare providers, feeling that jurors will automatically “assume the worst” of them and find it easy to side with the doctors.
But our polls reveal that actual juror opinions may not be so cut and dried:
As seen above, a majority of jurors (55%) believe that doctors actively take advantage of insurance companies. And when it comes to hospitals, jurors expressed even greater cynicism, with 45% agreeing, and 21% strongly agreeing (66% of mock jurors) that hospitals take advantage of insurers.
Given the public skepticism about doctors and hospitals suggested by these findings, an insurer may encounter a more balanced jury regarding their attitudes than it might have expected.
4) Jurors Connect Fraud with Their High Insurance Costs
When assessing jurors’ attitudes toward the validity of healthcare claims, 66% of jurors are keenly aware that fraudulent healthcare claims (via doctor providers or plaintiffs) are causing an upsurge in their own insurance costs:
Translating this finding to the courtroom, juror wariness of fraudulent claims may put healthcare provider plaintiffs and individual plaintiffs at a disadvantage as to whether or not their claims are valid.
5) Jurors Want Insurance Companies to Stop Provider Overcharges
Moreover, while insurance companies seem to be taking much of the brunt of healthcare litigation, our poll suggests they may find a more sympathetic jury when they go on the offense.
Juror distrust of healthcare providers and the perceived connection with higher insurance costs appears to carry over into a strong desire for legal recourse against offenders. Indeed, 72% of mock jurors believed that insurers need to be more methodical about identifying and suing healthcare providers who attempt to play the system.
6) Healthcare as a Major Industry in Each Juror’s Community
Finally, don’t forget that the healthcare industry can itself be a major employer and contributor to the community where your case is held. Knowing the importance of its role in the community where your trial will take place could be significant in predicting jurors’ attitudes and work-related experiences that will influence their understanding of a healthcare-related case.
Litigation in the healthcare industry and jurors’ healthcare attitudes will only continue to evolve, of course. Subscriber vs. Health Insurer suits, for example, have seen a reduction as a result of recent court decisions and the widespread introduction of independent appeal processes for subscribers. And, naturally, future decisions will set new precedents and likely create new mechanisms by which the players in this complex marketplace can pursue their claims.
By: Jill Leibold, Ph.D., Director – Jury Research
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