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The national debate over health care covered a broad spectrum of topics and invited opinions from every citizen.

And like any political issue, the debate will affect potential jurors, said Richard Gabriel, president of Decision Analysis, a jury consulting company in Los Angeles.

“Any debate in the public forum inevitably impacts jurors,” he noted.

For example, said Gabriel, the negative characterization of insurers by the Obama administration certainly affects how some potential jurors might view them in a medical malpractice case.

Plaintiffs’ attorney Mark Kosieradzki, of the Kosieradzki Smith Law Firm in Minneapolis, Minn., sees the issue as just the latest stage in the never-ending debate over tort reform.

“The people who want to preclude personal accountability will raise it with every political debate there is, and it was raised in the health care debate,” he said.

Douglas Keene, Ph.D., a clinical and forensic psychologist and litigation consultant at Keene Trial Consulting in Austin, Texas, noted that the debate isn’t over.

Until the law takes effect and potential jurors begin to experience the impact of the new health care system, “we won’t fully understand what the implications are,” he said.

Gabriel agreed.

“The debate was widespread, but people aren’t necessarily sure how this will make a difference in their lives yet, so they are waiting to see what will happen,” he said.

Questioning jurors

To assess how the health care debate may have affected your jury pool, you want to keep it simple, said Gabriel.

He suggested asking straightforward questions, like “What do you think about all the news out there about the debate over health care?”

“You really want jurors to open up and give their views of how they see the big picture issues – like insurance companies generally – and then how they view specific issues, like policy and coverage or underwriting,” he explained.

Kosieradzki said he asks jurors point blank: “Do you think there are too many lawsuits?”

“The answer is usually, ‘Absolutely,’” he noted.

Because the debate impacted a broad range of medical and insurance issues, Gabriel advises querying potential jurors in any type of cases involving medical negligence or insurance issues, as well as most personal injury cases, which often involve some aspect of treatment by doctors.

But awareness of the issue does not mean that every juror has tracked the nuances of the debate or understands all of the changes in the Health Care Reform Act.

“The type of people who are more keyed into the political stuff … are those who tend to want to send a message with the size of a verdict,” Gabriel said.

Comes down to the personal

As with any issue, a juror’s perspective ultimately depends on his or her personal experience.

No matter what the policy debate is on the national stage, a juror will typically base his or her opinion on the fact that “My Uncle Joe got screwed by his insurance company,” or “I had a great experience with my company,” Gabriel noted. “Most people are consumed with their own world, what they have known and seen and experienced in their life, and how that has shaped their beliefs and opinions as a result.”

Keene suggested that the impact of the health care legislation might be felt more strongly in smaller communities than big cities, because those jurors are more concerned about how a lawsuit is going to affect their cost of living, or their access to a doctor or medical procedure.

“Smaller town venues will be much more problematic for plaintiffs than urban centers where people have choices for medical care,” Keene said. “If potential jurors only have one, or maybe two, hospitals in a 40-mile radius, they are going to be somewhat protective of those places even if they may have made a mistake.”

But down the road, Keene said the new federal legislation may undermine that localized protection instinct.

If potential jurors believe that the federal government – a far-away entity – is in charge, they may have an easier time holding a doctor liable, or awarding higher damages, he suggested.

Questions or comments can be directed to the writer at: correy.stephenson@lawyersusaonline.com

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