Mega Malpractice Verdicts Against Physicians on the Rise

Alicia Gallegos

MedScape.com

Originally posted 2 Feb 24

Here is an excerpt:

Why Are Juries Awarding Higher Verdicts?

There's no single reason for the rise in nuclear verdicts, Henderson said.

One theory is that plaintiffs' attorneys held back on resolving high-dollar cases during the COVID pandemic and let loose with high-demand claims when courts returned to normal, he said.

Another theory is that people emerged from the pandemic angrier.

"Whether it was political dynamics, masking [mandates], or differences in opinions, people came out of it angry, and generally speaking, you don't want an angry jury," Henderson said. "For a while, there was the halo effect, where health professionals were seen as heroes. That went away, and all of a sudden [they] became 'the bad guys'."

"People are angry at the healthcare system, and this anger manifests itself in [liability] suits," added Bill Burns, vice president of research for the Medical Professional Liability Association, an industry group for medical liability insurers.

Hospital and medical group consolidation also reduces the personal connection juries may have with healthcare providers, Burns said.

"Healthcare has become a big business, and the corporatization of medicine now puts companies on the stand and not your local community hospital or your family doctor that you have known since birth," he said.

Plaintiffs' attorneys also deploy tactics that can prompt higher verdicts, White said. They may tell a jury that the provider or hospital is a threat to the community and that awarding a large verdict will deter others in the healthcare community from repeating the same actions.

Juries may then want to punish the defendant in addition to assessing damages for economic harm or pain and suffering, White said.

The article is here.

Physical Attractiveness in the Legal System

Rod Hollier

The Law Project

When I started looking into this subject, I predicted a person’s physical attractiveness would only have minor advantages. I was wrong.

In fact, I was so wrong, that in one study, the effects of physical attractiveness on judges were so influential, they fined unattractive criminals 304.88% higher than attractive criminals.

Surprising, I know.

Before we proceed, I want to address a few concerns of mine. Firstly, the information that you will read may cause some readers to feel unsettled. This is not my intention. Yes, it is disheartening. But the purpose of this article is to inform lawyers and other decision makers so that they can use the attractiveness bias to their advantage or to counter it.

A second concern of mine is that I don’t want to over-emphasise the attractiveness bias. Judges and jurors are affected by all kinds of cognitive distortions, such as emotive evidence, time of day, remorse of the defendant, socioeconomic status, race, gender, anchoring effect, and the contrast bias.

In the first section of this article, I give a ‘straight-to-the-point’ summary of the research conducted by 27 studies. Next, I enter into greater depth on the attractiveness bias and its effects on judges, jurors, and lawyers. Lastly, I provide research on the attractiveness bias in everyday life. Arguably, the last section is the most interesting.

The studies and further information is here.

Artificial Intelligence and Legal Disruption: A New Model for Analysis

Hin-Yan Liu,  et .al (2020) 

Law, Innovation and Technology, 

12:2, 205-258

DOI: 10.1080/17579961.2020.1815402

Abstract

Artificial intelligence (AI) is increasingly expected to disrupt the ordinary functioning of society. From how we fight wars or govern society, to how we work and play, and from how we create to how we teach and learn, there is almost no field of human activity which is believed to be entirely immune from the impact of this emerging technology. This poses a multifaceted problem when it comes to designing and understanding regulatory responses to AI. This article aims to: (i) defend the need for a novel conceptual model for understanding the systemic legal disruption caused by new technologies such as AI; (ii) to situate this model in relation to preceding debates about the interaction of regulation with new technologies (particularly the ‘cyberlaw’ and ‘robolaw’ debates); and (iii) to set out a detailed model for understanding the legal disruption precipitated by AI, examining both pathways stemming from new affordances that can give rise to a regulatory ‘disruptive moment’, as well as the Legal Development, Displacement or Destruction that can ensue. The article proposes that this model of legal disruption can be broadly generalisable to understanding the legal effects and challenges of other emerging technologies.

From Concluding Thoughts

As artificial intelligence is often claimed to be an exponential technology, and law progresses incrementally in a linear fashion, there is bound to be a point at which the exponential take off crosses the straight line if these assumptions hold. Everything to the left of this intersection, where AI is below the line, is where hype about the technology does not quite live up to expectations and is generally disappointing in terms of functioning and capability. To the right of this intersection, however, the previously dull technology takes on a surprising and startling tone as it rapidly outpaces both predictions about its capacities and collective abilities to contextualise, accommodate or situate it. It is widely claimed that we are now nearing this intersection. If these claims hold up, the law is one of the institutions that stands to be shocked by the rapid progression and incorporation of AI into society. If this is right, then it is important to start projecting forward in an attempt to minimise the gap between exponential technologies and linear expectations. The legal disruption framework we have presented does exactly this. Furthermore, even if these claims turn out to be misguided, thinking though such transformations sheds different light upon the legal enterprise which hopes to illuminate the entire law.

A pdf of the article is here.

Implicit bias is a challenge even for judges

Terry Carter
ABA Journal
Originally posted August 5, 2016

Judges are tasked with being the most impartial members of the legal profession. On Friday afternoon, more than 50 of them discussed how this isn’t so easy to do—and perhaps even impossible when it comes to implicit bias.

But working to overcome biases we don’t recognize is a job that is as necessary as it is worth doing.

“We view our job functions through the lens of our experiences, and all of us are impacted by biases and stereotypes and other cognitive functions that enable us to take shortcuts in what we do,” 6th U.S. Circuit Court of Appeals Judge Bernice B. Donald told a gathering of judges, state and federal, from around the country. Donald was on a panel for a program by the ABA’s Judicial Division, titled “Implicit Bias and De-Biasing Strategies: A Workshop for Judges and Lawyers,” at the association’s annual meeting in San Francisco.

The post is here.

Harm is all you need? Best interests and disputes about parental decision-making

by Giles Birchley
J Med Ethics 2016;42:111-115
doi:10.1136/medethics-2015-102893

Abstract

A growing number of bioethics papers endorse the harm threshold when judging whether to override parental decisions. Among other claims, these papers argue that the harm threshold is easily understood by lay and professional audiences and correctly conforms to societal expectations of parents in regard to their children. English law contains a harm threshold which mediates the use of the best interests test in cases where a child may be removed from her parents. Using Diekema's seminal paper as an example, this paper explores the proposed workings of the harm threshold. I use examples from the practical use of the harm threshold in English law to argue that the harm threshold is an inadequate answer to the indeterminacy of the best interests test. I detail two criticisms: First, the harm standard has evaluative overtones and judges are loath to employ it where parental behaviour is misguided but they wish to treat parents sympathetically. Thus, by focusing only on ‘substandard’ parenting, harm is problematic where the parental attempts to benefit their child are misguided or wrong, such as in disputes about withdrawal of medical treatment. Second, when harm is used in genuine dilemmas, court judgments offer different answers to similar cases. This level of indeterminacy suggests that, in practice, the operation of the harm threshold would be indistinguishable from best interests. Since indeterminacy appears to be the greatest problem in elucidating what is best, bioethicists should concentrate on discovering the values that inform best interests.

The article is here.

Growing use of neurobiological evidence in criminal trials, new study finds

By Emily Underwood
Science
Originally posted January 21, 2016

Here is an excerpt:

Overall, the new study suggests that neurobiological evidence has improved the U.S. criminal justice system “through better determinations of competence and considerations about the role of punishment,” says Judy Illes, a neuroscientist at the University of British Columbia, Vancouver, in Canada. That is not Farahany’s interpretation, however. With a few notable exceptions, use of neurobiological evidence in courtrooms “continues to be haphazard, ad hoc, and often ill conceived,” she and her colleagues write. Lawyers rarely heed scientists’ cautions “that the neurobiological evidence at issue is weak, particularly for making claims about individuals rather than studying between-group differences,” they add.

The article is here.

What happened when Portugal decriminalised drugs

The Economist
Originally published June 11, 2015

Economist Films: For 20 years The Economist has led calls for a rethink on drug prohibition. This film looks at new approaches to drugs policy, from Portugal to Colorado. “Drugs: War or Store?” kicks off our new “Global Compass” series, examining novel approaches to policy problems.

Economist Films is a new venture that expresses The Economist’s globally curious outlook in the form of short, mind-stretching documentaries.

People can be convinced they committed a crime that never happened

Association for Psychological Science
Press Release on January 15, 2015

Evidence from some wrongful-conviction cases suggests that suspects can be questioned in ways that lead them to falsely believe in and confess to committing crimes they didn't actually commit. New research provides lab-based evidence for this phenomenon, showing that innocent adult participants can be convinced, over the course of a few hours, that they had perpetrated crimes as serious as assault with a weapon in their teenage years.

The research, published in Psychological Science, a journal of the Association for Psychological Science, indicates that the participants came to internalize the stories they were told, providing rich and detailed descriptions of events that never actually took place.

"Our findings show that false memories of committing crime with police contact can be surprisingly easy to generate, and can have all the same kinds of complex details as real memories," says psychological scientist and lead researcher Julia Shaw of the University of Bedfordshire in the UK.

The entire article is here.