Dealing with the Media in Managed Care Litigation

DEALING WITH THE MEDIA IN MANAGED CARE LITIGATION

Why Talk To The Media?

What Do I Say To The Media?

Conclusion

The fact that the potential jurors are predisposed against managed care plans should be obvious to everyone in the managed care industry. Horror stories about the "sins" of managed care abound in the media. Health care plans are routinely attacked in popular movies and television dramas. Politicians across the country have found managed care to be a "hot button" issue with voters.

1. Why Talk To The Media?

Because decisions by managed care plans can involve explosively emotional issues concerning sympathetic persons in dire need of health care, lawsuits over managed care decisions can create a firestorm of media interest. Often, the issues in these lawsuits can literally involve life or death questions. As a consequence, the actual factual and legal issues in a lawsuit over managed care decisions can fade into the background as the case turns into a referendum over managed care and the industry itself.

Plans often ignore media inquiries as being irrelevant to the lawsuit and useless given the perceived media bias against managed care. However, plans should consider media inquiries as an opportunity to educate the public and potential jurors about the advantages of managed care.

The theme of the defense that will be utilized at trial should also be summarized for public consumption.

2. What Do I Say To The Media?

The message to the media concerning managed care and how the case will be defended must be sharply focused and digestible in short "sound bites" or quotes that can be repeated by television, radio, and the print media. Persons speaking to television or radio reporters should realize that ten minute interviews will be reduced to ten second "sound bites" because of the time constraints of the broadcast medium.

Furthermore, plan spokespersons should recognize that the power of television is not limited to the information conveyed by the speakers, but by the emotional impact transmitted by the images shown on the screen. Plan spokespersons should be alert to the fact that tough questions designed to elicit emotional responses will occur in these kinds of cases.

Although newspaper and magazine articles can explore issues with greater depth than the broadcast medium, plan spokespersons will again find that lengthy interviews that may provide valuable background information will result in the entire interview reduced to a single sentence quote from the spokesperson.

Generally, journalists will respect the confidentiality of off-the-record discussions that are intended to provide the journalist with the necessary factual or legal background concerning the dispute. However, any off-the-record interviews must be clearly designated as such. Otherwise, the presumption by the journalist is that the discussions are on the record.

Plan spokespersons should not be surprised that a one hour interview results in a single sensationalized quote taken out of context. Journalists are often not experts in health care issues and cannot be expected to fully understand the complex and emotional issues presented in the litigation under the time constraints in their profession.

Care must be given to statements given to reporters since articles in the media are often repeated by other media sources. Thus, fact errors in one newspaper account are often magnified when the original erroneous report is repeated by other newspapers or wire service reports.

Accordingly, plan spokespersons should be prepared to deliver carefully considered remarks at the first opportunity during an interview that summarize the plan’s defense with the expectation that those remarks will be the evening news’ "sound bite" or the morning paper’s quoted response to the charges made in the lawsuit.

These carefully considered remarks must contain the theme of the defense for the plan from the lawsuit. The theme of the defense must be distilled into a memorable phrase or two that will resonate with the jury and create the moral imperative for them to acquit the managed care plan. The theme must be easily understood by any juror or member of the public.

3. Conclusion

Although the likelihood of the message delivered by plan spokespersons being heard by potential jurors in the case may be remote, a concerted effort by managed care plans to defend managed care in every lawsuit and at every opportunity may eventually counter-act the public’s presumption of guilt about managed care.