Tim Mullaney

In reporting on lawsuits against long-term care providers, I’ve spoken to plaintiffs’ lawyers who rival Stephen King in their descriptions of misery and gore. So I understand why nursing home operators worry about juries being swayed by a gruesome depiction of a bad pressure ulcer rather than the facts of a case. New research shows that these concerns are justified — but it also gives hope to long-term care operators facing unfair accusations.

First the bad news: Graphic testimony related to personal injuries or death makes people want to inflict harsher punishments.

The Vanderbilt University investigators presented the 30 study participants with scenarios involving death, maiming, physical assault and damage to property. The hypothetical situations were described both in a matter-of-fact way and in a lurid manner.

One example: John and Steve are mountain climbing, and John cuts Steve’s rope. The cool-headed description: “Steve falls 100 feet to the ground below. Steve experiences significant bodily harm from the fall and dies from his injuries shortly after impact.” The other version: “Steve plummets to the rocks below. Nearly every bone in his body is broken upon impact. Steve’s screams are muffled by thick, foamy blood flowing from his mouth as he bleeds to death.”

Result: That second description made people want to punish John more severely.

Now the good news. The graphic language did not lead study participants to select harsher punishments if they perceived that the harm was caused unintentionally. This is thanks to a particular brain response, the researchers determined through fMRI scans.

They found that the graphic language set off activity in the amygdala, which then sent strong signals to a separate brain region involved in the desire to mete out punishment. However, if someone understood that the harm was not intentionally caused, another brain system kicked in and appeared to suppress the amygdala’s response to the graphic language.

“This is basically a reassuring finding,” stated lead researcher Rene Marois, Ph.D. “It indicates that, when the harm is not intended, we don’t simply shunt aside the emotional impulse to punish. Instead, it appears that the brain down-regulates the impulse so we don’t feel it as strongly. That is preferable because the urge to punish is less likely to resurface at a future date.”

Reassuring indeed for the long-term care provider facing unfair negligence charges related to a resident who experienced disturbing but unpreventable conditions. Of course, to counteract a lawyer’s graphic language, the provider would have to convince the jury that caregivers did not have bad intentions and that every effort was made to provide high-quality services. Sounds like yet another reason why scrupulous documentation is so important.

I do see one obvious way in which the Vanderbilt research might not neatly apply to testimony in nursing home cases. Presumably, the study participants were not predisposed to disliking John, the guy who cut poor Steve’s rope. But nursing homes’ public relations problems are no secret, so jury members very well might come in with a bias.

The selection process is supposed to weed out biased jurors, you might note. And there are prohibitions on unnecessarily gruesome evidence in the courtroom. True, but long-term care providers surely know our legal system is imperfect. Even judges themselves, those lofty overseers meant to ensure fair play in the courtroom, sometimes seem to have it out for nursing homes — lawyers are arguing that a Massachusetts judge recently tried too hard to get a jury to “send a message” to the whole long-term care industry. (The jurors handed down a $14 million verdict.)

So I suspect nursing home operators might find it harder than John, the fictional defendant, to overcome the effects of a lawyer’s graphic language. But nursing homes that provided care in good faith might be best served by keeping their cool and shining a bright light on their pure intentions.

Tim Mullaney is McKnight’s Senior Staff Writer. Follow him @TimMullaneyLTC.