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Confirmation Bias: Foe of Justice and Truth

  
“Confirmation Bias” has nothing to do with the Holy Spirit. It is a mindset we all are susceptible to in the way we see the world. ‘Confirmation Bias’ is a psychological phenomenon that explains why people tend to seek out information that confirms their existing opinions and overlook or ignore information that refutes their beliefs.’

“Confirmation bias” can lead to misdiagnosis, researching errors, missed evidence and analytical flaws in our every day thinking. That’s why it is important to always try and strive to keep an open mind when you investigate claims, research legal issues and critique the analysis of your experts as well as those of your opponent.

In medical malpractice cases for example, the doctor can start off with a predetermined idea as to the cause of the patient’s medical problem. This can result in the doctor ignoring or overlooking important evidence which would lead to an accurate differential diagnosis.  The patient’s suffering is prolonged and exacerbated because the wrong treatment is given.

In the relm of criminal litigation, police and prosecutors may prematurely focus on a prime suspect and ignore other persons who could potentially be responsible for the crime at issue.  The popular Netflix docu-series “Making a Murderer” about Steven Avery is a classic example of how this can occur.  The focus of the investigation is prematurely narrowed. As a result, investigative leads are ignored. Evidence is overlooked and lost forever.  

An excellent book, “The Innocent Man” by John Grisham also documents the same type of errors.  The belief of the police, that they had their man, blinded them to the truth.  This resulted in an innocent man, Ron Williamson, being wrongfully convicted of a crime he did not commit.  At one point, Williamson was five days away from being executed.  Ironically, the actual perpetrator of the crime sent the police chasing the false lead and caused the State to prosecute  and convict the wrong man (Ron Willamson) of the murder along with another man.  This man’s only crime was being Ron’s friend and refusing to give false testimony implicating Ron Willamson in a rape-murder neither of them committed.  Thanks to the Innocence Project, both men years later were released and exonerated through DNA testing performed on the victim’s clothing.

Such informational bias and prejudice on the part of juries may make a fair verdict impossible or very difficult to obtain. You must deal with this problem in your voir dire examination and seek leeway from the court to thoroughly explore such biases.  This requires the use of mock juries, jury questionnaires, individual examination of jurors, adequate time for jury selection and in some instances a change of venue or venire. 

Social media, sensational news articles and reader comments can pollute the jury pool.  Bias and unsubstantiated claims fill the air of the community.  These must be explored. In this regard, please read the article below:
http://www.bloombergview.com/articles/2016-01-08/how-facebook-makes-us-dumber

So keep an open mind and it just might be the key to your case. 

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Medical Malpractice: When Common Sense Trumps Expert Knowledge

20120115-144530.jpgMedical malpractice cases are difficult and expensive to litigate.  However, sometimes experts are not required… Just common sense.

Indiana has long embraced the “common knowledge exception” to requirements of expert testimony in certain matters. A physician’s allegedly negligent act or omission can be so obvious that expert testimony is unnecessary. Wright v. Carter, 622 N.E.2d 170, 171 (Ind. 1993).

​In Indiana, cases where expert opinion evidence is not necessary typically involve the failure of the operating physician to remove some foreign object from the patient’s body. Funk v. Bonham (1932), 204 Ind. 170, 183 N.E. 312 (sponge left in abdomen), Ciesiolka v. Selby (1970), 147 Ind. App. 396, 261 N.E.2d 95 (teflon mesh left in abdomen); Klinger v. Caylor (1971),148 Ind. App. 508, 267 N.E.2d 848 (“surgical padding” left in intestinal tract); and Burke v. Capello (1988), Ind.,520 N.E.2d 439 (cement left in hip). Likewise, in a similar fashion, res ipsa loquitur applied when a patient’s oxygen mask caught fire during surgery, see Cleary v.Manning, 884 N.E.2d 335, 339 (Ind. Ct. App. 2008).

This same sort of common sense approach is endorsed in other jurisdictions as well.Bernsden v. Johnson, 174 Kan. 230, 236-37, 255 P.2d 1033 (1953)(applying exception when post-surgery choking was caused by metal disc lodged in patient’s throat); Biggs v. Cumberland County Hospital System, Inc., 69 N.C.App. 547, 317 S.E.2d 421 (1984) (where patient is known to be in weakened condition and is left alone in shower, where she falls, expert testimony on standards for nurse’s aides not required); Burks v. Christ Hosp., 19 Ohio St.2d 128, 131, 249 N.E.2d 829 (1969) (sedated, obese patient fell from hospital bed without side rails);   Cockerton v. Mercy Hospital Medical Center, 490 N.W.2d 856 (Iowa App.1992)(where patient fell while in x-ray room expert testimony was not required on hospital’s negligence);  Dimora v. Cleveland Clinic Found., 114 Ohio App.3d 711, 718, 683 N.E.2d 1175 (8th Dist.1996) (patient fell after student nurse left her unattended at her walker while opening a door);  German v. Nichopoulos577 S.W.2d 197, 202-03 (Tenn. Ct. App. 1978) overruled on other grounds by Seavers9 S.W.3d at 96; Green v. Lilliewood, 272 S.C. 186, 249 S.E.2d 910 (1978) (holding tubal ligation rendering intrauterine device and other birth control device useless constitutes a matter of common knowledge); Hickman v. Sexton Dental Clinic, P.A., 295 S.C. 164, 367 S.E.2d 453 (Ct. App. 1988) (holding evidence presented was sufficient for the jury to infer without the aid of expert testimony a breach of duty to dental patient where patient testified an unsupervised dental assistant rammed a sharp object into patient’s mouth); Hubbard v. Reed, 168 N.J. 387, 395, 774 A.2d 495, 500 (2001) (case in which the defendant dentist allegedly pulled the wrong tooth); LaCourse v. Flower Hosp., 6th Dist. Lucas No. L–02–1004, 2002-Ohio-3816, 2002 WL 1729897, ¶ 16;) McConkey v. State128 S.W.3d 656, 660 (Tenn. Ct. App. 2003); Murphy v. Schwartz739 S.W.2d 777, 778 (Tenn. Ct. App. 1986); Natale v. Camden County Correctional Facility, 318 F.3d 575 (3d Cir.2003) (personnel failed to call treating physician to determine how often insulin was to be administered); Newhall v. Central Vermont Hospital, Inc., 133 Vt. 572, 349 A.2d 890 (1975)(expert testimony not required where nurse failed to respond to sedated patient’s call and patient got out of bed and fell);  Palanque v. Lambert-Woolley, 168 N.J. 398, 400, 774 A.2d 501 (2001)(misread the specimen identification numbers as plaintiff’s test result numbers and mistakenly determined that plaintiff had an ectopic pregnancy) Robbins v. Jewish Hospital of St. Louis, 663 S.W.2d 341 (Mo.App.1983) (expert testimony not required where bed rails not raised and brain damaged patient fell out); Rule v. Cheeseman, Executrix, 181 Kan. 957, 963, 317 P.2d 472 (1957) (all four cases applying exception when sponge was left in patient after surgery); Schraffenberger v. Persinger, Malik & Haaf, M.D.’s, Inc., 114 Ohio App.3d 263, 267, 683 N.E.2d 60 (1st Dist.1996) (patient alleged that doctor negligently and erroneously informed him that he was sterile following a vasectomy); Schwartz v. Abay, 26 Kan.App.2d 707, 995 P.2d 878 (1999) (applying exception where surgeon removed 60% of the wrong vertebral disc); Seavers v. Methodist Med. Ctr. of Oak Ridge9 S.W.3d 86, 92 (Tenn. 1999); Thomas v. Dootson, 377 S.C. 293, 659 S.E.2d 253 (Ct. App. 2008) (recognizing expert testimony was not required for claim arising from a surgical drill that burned skin on contact because claim would fall within the common knowledge or experience of laymen); Veesart v. Community Hospital Asso., 211 Kan. 896, 508 P.2d 506 (1973) (expert evidence not required where elderly patient fell while going to bathroom); Walker v. Southeast Alabama Medical Center, 545 So.2d 769 (Ala.1989)(where bed rail left down contrary to doctor’s order and patient fell, no expert testimony required on standard of care);  Washington Hospital Center v. Martin, 454 A.2d 306 (D.C.App.1982)(mere fact that patient falls in hospital will not normally require expert testimony on hospital’s negligence).
​Medical malpractice litigation is expensive enough for a citizen to pursue. Common sense propositions should not require expert testimony. The underlying purpose of Indiana’s Rules of Evidence is set forth in Rule 102:

Purpose and Construction
These rules shall be construed to secure fairness in administration, elimination of unjustifiable expense and delay, and promotion of growth and development of the law of evidence to the end that the truth may be ascertained and proceedings justly determined.

The implementation of the “common knowledge exception” “eliminates unjustifiable expense” so that the “truth may be ascertained” and “proceedings justly determined.”  Trial Rule 1 of Indiana’s Rules of Trial Procedure echoes similar sentiments noting:

They shall be construed to secure the just, speedy and inexpensive determination of every action.

​The costs of medical malpractice cases are such that only a handful of cases are economically feasible to pursue, thereby closing the court house doors to most claims. Gary T. Schwartz, Medical Malpractice, Tort, Contract, and Managed Care, 1998 U. ILL. L. REV. 885, 895 (discussing how non-“large-damage” medical malpractice claims are impractical); Jeffrey J. Parker, Comment, Contingent Expert Witness Fees: Access and Legitimacy, 64 S. CAL. L. REV. 1363, 1369 (1991) (“[F]ees to employ necessary expert witnesses constitute substantial litigation expenses.”).

So remember that the “common knowledge exception” can be uncommonly economical and effective.

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