Doctor vs. Patient in Failure to Warn Cases: Who should jurors believe?
In litigation involving personal injury and prescription drugs, the plaintiff often claims that a doctor or other healthcare professional failed to warn him or her about the risks associated with the drug. Very often, the doctor in question claims that he/she did, in fact, warn the patient. Absent written documentation, it becomes the doctor’s word versus the patient’s. In such cases, juries may assume that the patient’s recall would be better given that the doctor rarely has an independent recollection of the visit and has had many conversations with many different patients.
But the patient is probably wrong. Decades of studies of patient-doctor interactions support this notion. The trend of those studies is the conclusion that most patients remember very few details of their doctor visits. One study even used tape recorders to document what the doctor said, and then questioned patients later, when nearly all of the patients “positively but wrongly denied that certain major items had been discussed.” So while patients were certain they remembered what had been discussed, empirical evidence proved them wrong.
The results of these studies made us wonder whether this research could help the defense in failure to warn cases. Would jurors be receptive to this information and adjust their opinions accordingly? Could jurors be easily educated about this phenomenon in a way that made them less likely to give the patient the benefit of the doubt in such scenarios?
We decided to test these questions using an online survey. The brief questionnaire we constructed focused on respondents’ attitudes toward drug safety and their experiences with doctors and prescription drugs. We then provided a brief explanation of the aforementioned study and its results. Finally, we gathered respondents’ reactions to the study and questioned who they would believe in a case where the doctor claims to have warned a patient about a particular risk or side effect of a medication and the patient claims he/she received no such warning.
Our findings demonstrated that a majority of respondents accepted the study’s findings as accurate. Additionally, after receiving information about that study, the vast majority sided with the doctor in a dispute about whether the doctor warned of a particular risk or side effect. Our findings also provided valuable information about the characteristics of jurors who resist such arguments.
We chose to examine a very limited issue, but these results highlight the ability to educate jurors about a fact that 1) arises extremely often in failure to warn cases and 2) is most often presented to jurors as simply a “credibility contest.” Although persuading jurors can be difficult, findings such as these demonstrate that in some cases, it may be easier than we might think.
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Tracey Carpenter, Ph.D. and Susan Chiasson, Ph.D. started Carpenter Trial Consulting in 2010. They each have extensive experience in high-stakes civil litigation and specialized expertise in how jurors analyze evidence, assess witnesses, and arrive at verdict decisions.