STRATEGIES TO COMBAT HINDSIGHT BIAS
The Sixth Sense is predictable if you watch it knowing that Bruce Willis’ character is dead. Criticizing Nick Saban’s decision to attempt a 57-yard field goal is easy once you know that the kick fell short and the Auburn player returned it 109 yards for a game-winning touchdown. Of course Bruce Willis was dead the whole time. Of course the field goal was out of the kicker’s range. Once you know the ending of the movie, the clues along the way are obvious. Knowledge of the ultimate outcome simplifies the analysis of the decisions leading to that outcome. The result was bad. Therefore, the decisions must have been bad.
Hindsight bias is a problem for defendants in health care liability cases. Plaintiffs, lawyers, witnesses, and jurors know the end result when assessing the provider’s decisions. They have the benefit of knowing the ultimate outcome when analyzing the care at issue. Of course the middle-aged patient’s back pain suggested cancer. Of course the x-ray shows a fracture. The providers, of course, do not have this luxury. They make decisions in the moment based on the information available to them.
TACTICS TO ADDRESS
So what can be done about this Monday morning quarterbacking? The following tactics can limit the effect of hindsight bias:
- Obtain blind expert reviews. Send your expert only the information available to the defendant when he or she provided the care. Do not reveal subsequent care or the ultimate outcome before getting an initial expert opinion. Track the blind review with correspondence showing what the expert received and when. Your expert’s opinions will be more credible than the opinions of the plaintiff’s expert, who knew the outcome before reviewing the medical records.
- Confront the plaintiff’s expert about hindsight bias during the expert’s deposition. Establish that the expert knew the ultimate outcome when reviewing the records. Make the expert agree that the defendant did not know the outcome when providing the care. Talk about hindsight bias. The expert might admit that hindsight bias impacted his or her opinions.
- Make hindsight bias a theme at trial. Address it during your opening statement, during the direct examination of your provider, and during the cross-examination of the plaintiff’s experts. Establish that your provider did not know the outcome when providing the care at issue and that your experts did not know the outcome when developing their opinions. The plaintiff’s experts, however, knew the outcome and let that knowledge impact their opinions. Make the jurors consider their own hindsight bias when assessing the defendant’s decisions.
- Include a special jury instruction that the jury must judge the provider with foresight rather than hindsight when determining whether the provider complied with the standard of care. The jury must only consider what the doctor knew or thought at the time of the alleged injury rather than what the doctor discovered following the injury or any expert testimony based upon knowledge obtained after the alleged injury, including knowledge of the outcome. Supportive case law is Dillard v. Meharry Med. College, No. M2001-02038-COA-R3-CV, 2002 Tenn. App. LEXIS 471, at *14–15 (Tenn. Ct. App. July 9, 2002).
Hindsight bias can never be eliminated because plaintiffs do not file lawsuits after perfect outcomes, and everyone involved in a health care liability action knows that something bad happened that resulted in the lawsuit. However, defense lawyers can limit the effects of hindsight bias by using the above tactics and making hindsight bias a theme throughout the lawsuit.
 I apologize for ruining the ending, but the movie is 20 years old. You should have watched it by now.This entry was posted in malpractice. Bookmark the permalink.