Health literacy is defined as ‘The degree to which individuals have the capacity to obtain, process, and understand basic health information and services needed to make appropriate health decisions.’ Beyond simply the ability to read, health literacy requires a patient to listen and analyze information about their health in order to make an informed decision. This seems easy enough, but the language of medicine, healthcare, and science for that matter, can be overwhelming to the average person. Whether in the exam room or the jury box, the fact remains that medical and biological concepts are not necessarily intuitive to everyone, although they are vital in both venues. Approximately half the US population, or nearly 150 million people, have difficulty understanding and using health information. This occurs for a multitude of reasons ranging from lack of educational opportunity to cognitive decline in older adults, but regardless of the reason, health literacy remains a serious problem not only in the healthcare setting, but in medical litigation as well. The standard assumption when dealing with patients or juries is that the average person has a 5th grade reading level. And this doesn’t necessarily coordinate to the average person’s ability to digest health information. In fact, only an estimated 12% of US adults have proficient health literacy, while another 14% are characterized as ‘below basic’ health literacy.
Regardless of the level of health literacy, the way a person learns and manages new information is another important aspect to consider in the field of medical malpractice litigation. In fact, a person’s learning style is arguably more important in this setting, in which the job of the plaintiff and defense is to educate the jury on the anatomy, medicine, and mechanism of injury in order to prove causation or defense.
Most people are visual, auditory, or kinesthetic learners. About 50% of the population are visual learners, meaning they prefer to see what they are learning, relying on text, graphics, and the way that designs, patterns, and shapes convey information. Another 35% of the population are kinesthetic learners who need an experience and practice in order to understand and embed information.
Only about 15% of the adult population are auditory learners and prefer to hear what they are learning, gleaning information from what they hear during lectures, group discussions, etc. This presents an interesting conundrum since the courtroom model is set up so that most of the crucial information in a case is presented verbally during testimony and statements. This alone is a pretty strong argument for the use of demonstrative evidence in any juried courtroom, but in the case of the added complexity of medical litigation, it should be a no-brainer.
Demonstrative evidence is technically any evidence that is not testimony. In medical malpractice litigation, that can be models, charts and graphics, medical records, medical illustrations, film studies, or even animations and interactives. These types of visual aids make it possible to raise the jury’s collective health literacy to a baseline level, which then sets the scene for the more complex concepts of causation and mechanism of injury that are inevitably key in medical malpractice litigation.
A well-constructed medical illustration can show on one poster board what an expert will spend hours on the stand or in deposition explaining. It eliminates the confusing medical terms and scary sounding processes by simply showing the jury the essence of the issue.
Clinical studies have shown that people will immediately forget as much as two thirds of what they hear. However, juror retention increases to 100% if a visual, instead of oral, presentation is used. In fact, juror retention can increase up to 650% when both a visual and an oral presentation are used in conjunction. Ultimately, the issue of health literacy in the medical malpractice courtroom is intimately related to enabling the jury to understand the information faster and hold their interest longer. The bottom line is that an informed jury is much more likely to return a medically responsible verdict.
A picture is worth a thousand words…
The cost of litigation has continued to skyrocket, with the cost to defend a medical malpractice case estimated to be roughly $25,000, with legal costs often exceeding $100,000 in lengthy cases. If several hundred to even several thousand dollars spent on demonstrative evidence could reduce the length of the trial and the overall legal costs, then a picture would also be worth thousands of dollars to doctors and insurance companies alike.
—Contributed by Emily Ullo Steigler, MS, CMI