Excelas had the opportunity to attend “Defending Damages in the Post-COVID Era: A Discussion on Anchoring Damages in Mediation, Arbitration and Trial” at the DRI Senior Living and Long-Term Care Seminar.  There were numerous take-aways from this presentation by Dr. John Lowry of The Lowry Group and John Hall, Jr. of Hall, Booth, Smith including the following:

A driving factor of these verdicts is the “lottery money effect,” whereby jurors have become desensitized to massive dollar awards as a result of trillion-dollar government programs, billion-dollar lottery jackpots, and exorbitant sports salaries.  Further, there is evidence that jurors’ distrust big corporations and their lawyers, feel that “the system is rigged,” and accept arguments by plaintiffs’ counsel that corporate defendants prioritize “profits over people.”  Focus groups have revealed that people think healthcare providers profited greatly through COVID-19.  This desensitization to dollar amounts, along with general distrust, is also referred to as “social inflation.”

These aberration verdicts, which are beyond rational damage estimates, are based more on emotion and perceived credibility and less on facts, law, common sense, and expert opinions.  Typically, the defense focused on challenging liability through standard of care or causation, while plaintiffs’ counsel developed damages early.  However, this rise in nuclear verdicts requires early, proactive, and aggressive management in defending damages and determining the resolution plan.

Anchoring is a strategy plaintiffs use to elicit exorbitant damage awards by giving a specific reference point, or “anchor,” to use when evaluating damages in a lawsuit. That initial figure, regardless of the size or the basis for the amount, can significantly impact the amount of an award. Anchoring the damages applies to mediation, settlement, and trial. Defense counsel must take control of setting the value through early evaluation by defense professionals rather than waiting for damages to be set by the plaintiff.

Defense counsel should develop damages within the first 120 days to establish a reasonable counter-anchor.  Appropriate case evaluation at the front end includes a review of claimed medical expenses and medical records (including an assessment of the impact of comorbid conditions) to determine if the claimed damages can reasonably be attributed to the alleged injuries.  Once this early evaluation is completed and the value is determined, counsel can develop the resolution strategy.

To support early evaluation and value analysis, a review and assessment of the medical records must be completed.  Excelas has experienced health information management, allied health, and nursing professionals to assist defense counsel by:

• organizing medical records and other relevant materials,
• evaluating the quality and completeness of the medical records,
• assessing and integrating relevant policies and procedures,
• preparing chronologies and case summaries, and
• delivering the medical records and medical analyses though a secure, cloud-based system.

Contact Excelas to learn more about our full range of services. We assist defense counsel by coordinating medical record management functions to allow counsel to focus on strategies to combat these aberration and nuclear verdicts.