The Authors
All three authors are with the law firm of Hall Booth Smith, P.C., and concentrate on various aspects of healthcare defense. Lindsay A. Nishan (lnishan@hallboothsmith.com) is an Associate in the HBS Charleston office. Samantha Bowen Myers (smyers@hallboothsmith.com) is an Associate in their West Palm Beach, Florida, office. Sandra Mekita Cianflone (scianflone@hallboothsmith.com) is a Partner in the firm’s Atlanta office. She is also a member of the Editorial Board of Advisors for the Journal on Emerging Issues in Litigation, and a frequent contributor to the Emerging Litigation Podcast.
Going Viral or Going Nuclear:
Social Inflation’s Impact on Jury Verdicts and How to Safeguard Against It
By Lindsay A. Nishan, Samantha B. Myers
and Sandra M. Cianflone
and Sandra M. Cianflone
A juror’s perception of companies and healthcare providers is increasingly colored by TV and social media. The same is true for their understanding of the practice law or medicine, which may be as wrong as it is immovable. “Social inflation” refers to rising litigation costs and the resulting higher insurance payouts which drive up the cost of insurance. In this article the authors, each of whom represents parties in the healthcare industry, discuss the evolving social trends that lead jurors to render “nuclear verdicts,” and what attorneys should consider in mitigating the effects of this phenomenon.
Social media feeds today are crammed with flashy advertisements from lawyers promising big-dollar settlements against “rich insurance companies.” The number of these commercials has spiked since the 1970s as the phenomenon known as “social inflation” has taken root in the legal system.
Social inflation is a term of art that refers to rising litigation costs, the impact those costs have on insurance claim payouts, and how much the average policyholder is expected to pay for basic coverage. Recently, the term social inflation has taken on a new meaning as it has become more widely used in the general press. The phrase has come to be associated with tort reform rollbacks, litigation funding, and is most seen in references to so-called “nuclear” jury verdicts, i.e., a jury award that exceeds $10 million.
But the question remains: What factors contribute to these exorbitantly high jury verdicts? These outsize awards are often driven by myriad factors including sympathetic jurors, societal conceptions about income and wealth of corporations, the use of emotion-driven “Reptile Theory” tactics by plaintiff attorneys, the media spotlight on “bad apple” physicians, and numerous other social factors. A new factor that influences elevated jury verdicts is the increasing volume of information—whether true or false—that is exchanged on social media platforms.
One of the lines most affected by this form of social inflation is the healthcare industry and the soaring costs of medical malpractice litigation. This includes lawsuits involving hospital systems, pharmaceutical companies, and their insurers.
See what the authors have to say about mitigating the impact of social inflation.