Imagine you’re on trial for malpractice. You enter the courthouse, take your seat, and survey the jury. Some appear engaged. Most do not. Some are asleep – or halfway there. One smothers a drunken hiccup with the back of his hand.   

They all have one thing in common: No one looks like he wants to be there.   

You shut your eyes. A single thought tattoos your brain: “My fate is in the hands of these people?”  

Laymen fill the jury pools for most malpractice trials. (I know. I know. It’s supposed to be a jury of our peers.) If the pool does contain healthcare professionals, they are often filtered before the trial begins in earnest. The same applies to virtual trials.   

Before the pandemic, virtual trials were less common. But many trials went virtual when the pandemic struck, taking doctors and attorneys into the digital courtroom kicking and screaming.   

There is a growing body of evidence that jurors perceive virtual trials as casual affairs. And the more “relaxed” environment enables more casual behavior. Let’s review a few amusing (and concerning) real-world examples before addressing best practices specific to virtual med mal trials. 

We open with a doozy – or perhaps a “drowsy.”  

A doctor was on trial defending against an allegation of malpractice. The judge called a break. The jurors closed their Zoom applications. The trial resumed about half an hour later. Cue roll call. Everyone was present – except for one man. The bailiff tried to reach the absent juror by phone. Dial tone, answering machine, leave a message, etc.  

The trial could not continue until the missing juror joined the call.   

Medical emergency? House fire? Weather catastrophe? Sinkhole? Where was he?   

He was asleep. The trial had no choice but to wait until the man finished his nap, recalled his obligations as a juror, and returned. One cannot initiate a sternal rub virtually. What little momentum the defense gained was lost.   

These challenges impact jury selection as well. 

A candidate juror began slurring his words during his questioning. When the judge asked if the man was feeling okay, the man answered: “I have a drinking problem.” Uh-huh. He was dismissed.   

Another case whittled its selection to twelve candidates. During a conversation with a potential juror, the juror’s wife rushed into the room and began shouting at her husband.   

“The judge allowed her to speak, and the crying woman begged the judge not to select her husband for the trial because it would disrupt the couple’s childcare. After a lengthy exchange, they learned that the child was 16 years old and had his own car. The husband disagreed with his wife and wanted to remain a juror.”  

Traditional trials carry an element of theater that (hopefully) keeps jurors engaged and focused. Virtual trials, in their current form, generally do not. It’s too easy for people to disengage. It doesn’t help that most people don’t covet the opportunity to serve as jurors in the first place.   

Jokes aside, these examples serve as reasons why many doctors perceive virtual trials as less fair. Some doctors tolerate the shift from in-person to virtual. Others fight tooth and nail to prevent their trial from going virtual.  

“When Texas cardiologist Amin Al-Ahmad’s malpractice trial was changed to a virtual format because of COVID-19 concerns, Al-Ahmad and his attorneys fought the move.  

They argued that the malpractice case was too complex for a virtual format and that a video trial would deprive Al-Ahmad of his rights to due process, including the right to trial by jury.  

Al-Ahmad’s case involved allegations that he had failed to promptly diagnose and treat an atrial esophageal fistula, resulting in a patient’s stroke and ongoing neurologic problems. The trial was expected to last up to 10 days. Nine witnesses were expected to testify, and $1 million in damages were at stake, according to court documents.”  

Dr. Al-Ahmad’s trial was not postponed until in-person trials resumed. He did, however, prevail regardless. But what about doctors who don’t prevail? Are virtual trials ending in higher payouts for plaintiffs?  

One malpractice defense lawyer (Elizabeth Leedom) thinks so.   

“Virtual trials don’t have the gravity or the seriousness of a real trial,” Leedom said. “I don’t think the importance of the jury’s decision weighs on them as much during a Zoom trial as it does an in-person trial.”  

Alarmingly, Leedom said that in her experience, damages in virtual trials have been higher in comparison with damages awarded during in-person trials.  

Kari Adams, VP of Claims for Physicians Insurance, agrees with this observation.  

“We’ll still win cases, but we’re concerned that in the cases we lose, the damages can be slightly higher because there hasn’t been that interpersonal connection with the defendant,” she said. “It almost becomes like monopoly money to jurors.”  

What can doctors do to endear themselves to virtual jurors? We’ll echo a few points shared in our source material.   

Maintain eye contact with the jurors. Not practical during a traditional trial, but in a virtual one, doctors can do this by simply keeping their eyes on the camera embedded (or attached) to their computer.   

Keep a straight face. Resist the urge to sigh, roll your eyes, scowl, etc.   

Refrain from eating or dodging the camera to check your phone. In short, treat the virtual trial with the same gravity as a traditional one.   

It’s not all bad news. Virtual trials present doctors with certain advantages. Practice cross-examinations with your defense. Record these exercises and play them back, paying careful attention to your own facial expressions and tone of voice. These “play-acting” exercises afford doctors the rare opportunity to literally see themselves as the jury does. 

If you have potentially disruptive tells or habits, this is the time to identify and suppress them.  

Make sure your environment is well lit. Bad lighting is unflattering and makes it easier for everyone to tune you out. On that note, dress the part. Negotiating accusations of med mal in pajamas is bad form. 

And lastly and most importantly, disable all camera filters that modify your appearance in real-time. This attorney did not. His video conferencing service transformed him into a cat. Probably not his intended strategy.

Virtual trials will likely remain “on the table” until the pandemic recedes from both our memories and society at large. Some regions never adopted the practice in the first place and continue to hold trials in person. And some doctors prefer virtual trials to their in-person counterparts, citing the less confrontational nature of virtual trials as a welcome benefit.  

What do you think? Let us know in the comments below.

Jeffrey Segal, MD, JD

Chief Executive Officer and Founder

Dr. Jeffrey Segal, Chief Executive Officer and Founder of Medical Justice, is a board-certified neurosurgeon. Dr. Segal is a Fellow of the American College of Surgeons; the American College of Legal Medicine; and the American Association of Neurological Surgeons. He is also a member of the North American Spine Society. In the process of conceiving, funding, developing, and growing Medical Justice, Dr. Segal has established himself as one of the country’s leading authorities on medical malpractice issues, counterclaims, and internet-based assaults on reputation.

Dr. Segal was a practicing neurosurgeon for approximately ten years, during which time he also played an active role as a participant on various state-sanctioned medical review panels designed to decrease the incidence of meritless medical malpractice cases.

Dr. Segal holds a M.D. from Baylor College of Medicine, where he also completed a neurosurgical residency. Dr. Segal served as a Spinal Surgery Fellow at The University of South Florida Medical School. He is a member of Phi Beta Kappa as well as the AOA Medical Honor Society. Dr. Segal received his B.A. from the University of Texas and graduated with a J.D. from Concord Law School with highest honors.

In 2000, he co-founded and served as CEO of DarPharma, Inc, a biotechnology company in Chapel Hill, NC, focused on the discovery and development of first-of-class pharmaceuticals for neuropsychiatric disorders.

Dr. Segal is also a partner at Byrd Adatto, a national business and health care law firm. Byrd Adatto was selected as a Best Law Firm in the 2021 edition of the “Best Law Firms” list by U.S. News – Best Lawyers. With over 50 combined years of experience in serving doctors, dentists, and other providers, Byrd Adatto has a national pedigree to address most legal issues that arise in the business and practice of medicine.