By Dr. Ken Broda-Bahm:
In Charles Dickens’ classic “A Christmas Carol,” the final act is brought by the spectral Ghost of Christmas Future who shows the miserly Ebenezer Scrooge the vision of those he mistreated in life celebrating his death after he is gone. This Christmas, that part of the seasonal story might be hitting health insurance executives a little too close to home. After UnitedHealthcare CEO Brian Thompson was shot and killed in front of a camera on a Manhattan street this week, the brazen and apparently pre-planned murder quickly supplanted the Presidential transition to become the top news story in the country. What has driven public attention is not just the manhunt, but also the public response.
Announcements of the CEO’s death often led to responses infused with dark humor (e.g., “thoughts and prayers are out of network”), and on social media more respondents numbering in the six figures actually responding with the laughing emoji. More substantive voices chimed in with a tone of, “A murder like this is always wrong…but” followed by observations on what the public response says about the country’s deep distrust of the healthcare system. Many others joined in an outpouring of personal horror stories involving delayed and denied care. When representatives and participants in that system — doctors and other medical professionals, but especially claims handlers and insurance executives — face a civil trial, we can expect the jurors to bring these negative attitudes and experiences into the courtroom. While we can hope they’ll not cheer actual murder, we can expect that many to most will be primed toward a deep anti-corporate bias, and specifically toward a de-personalized and hostile view of the country’s health insurance system. In this post, I’ll take a look at what that means for litigants in the industry and share a list of questions to ask in voir dire.
The Context: Massive Public Distrust
If the aftermath of the Brian Thompson murder, many sources have pointed to a recent survey on views of the health insurance system conducted by the KFF Group. Surveying 3,605 American adults with health insurance, the research spotlights a few key conclusions.
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- Perhaps surprising, most (81%) give their own health insurance a rating of “excellent” or “good.”
- Less surprisingly, however, most (58%) reported experiencing a problem (denied claims, network problems, pre-authorization problems) in the last year.
- Nearly half of those who report problems with their health insurance also report being unable to satisfactorily solve those problems.
- More than a third report having difficulty understanding how their heath insurance works: what is and is not covered, what they owe out-of-pocket, how to read statements, etc.
- Among high users of health insurance, about three in four report problems with their insurance companies.
The survey focused on insurance and not the provision of care, and jurors are likely to separate what they think of their own doctors and nurses from what they think of those who decide whether the care is covered. At the same time, the issues in many cases will cause those perceptions to overlap. For example, if a doctor isn’t ordering a test, is hesitating on a diagnosis, isn’t spending sufficient time in an examination, or is prematurely discharging a patient, might that be due to difficulty or uncertainty regarding coverage? To a skeptical juror, a decision that is supposed to be solely based on medical criteria might be seen as being influenced by financial criteria as well. Part of the message to the jury is often, “Don’t think about insurance,” but given our system and the present moment, that can be a pretty tall order.
The Inquiries: Experiences and Attitudes in Voir Dire
While health insurance executives might be having their equivalent of Scrooge’s Christmas morning conversion and taking a hard look at ways to rebuild that bridge of public trust (e.g., greater clarity, transparency, and medically-grounded decision making), in the meantime litigants who are viewed as part of the country’s healthcare system will need to cope with the nation’s negative mood.
Initially, that means finding out what your jury panel really thinks. Before going to the ultimate question of “Can you be fair?” It will be essential to look into their own experiences and attitudes:
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- Do you have health insurance? Are you satisfied or dissatisfied with that insurance?
- Do you have private insurance or are you on a government program (Medicare or Medicaid)?
- Is your health insurance affordable or unaffordable?
- Do you have a good or bad understanding of what your insurance covers, what you owe or don’t owe, what doctors you can or can’t see?
- How frequently do you deal with your health insurance?
- Have you had coverage denied on care for yourself or a loved one?
- Have you or a loved one suffered any health consequences due to denied care?
- Have you or a loved one ever been unable to receive care due to an insurance issue?
- Have you or a loved one ever delayed or avoided care because you did not think it would be covered?
- Have you or a loved one tried to resolve a dispute with your health insurance company? Were you able to resolve it?
- Have you had problems paying medical bills?
- Do you think there should be greater or less government regulation of the health insurance industry?
- Do you think there should be more customer assistance programs to help people deal with insurance coverage?
And, based on the response, it may also be necessary to ask:
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- What was your reaction to the news on the murder of UnitedHealthcare CEO Brian Thompson?
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Other Posts on Public Attitudes:
- Don’t (Fully) Trust Public Opinion Polls
- Attitudes on Race: Consider that the Dog Whistle May No Longer Be Necessary
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In Malpractice Litigation, Account for Jurors’ Motive to Trust the Doctor
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