According to Merriam-Webster, it is the “assured reliance on the character, ability, strength, or truth of someone or something; one in which confidence is placed.” In healthcare, it is the reliance the public places on hospitals, doctors, nurses, and everyone else to provide safe care to the community. Trust is in trouble and in less supply in our country: we live in a country where many people question the integrity of systems, data, leaders, and even scientists and clinicians.
In a 2018 Health Services Research article, titled, “Public trust in health information sharing: a measure of system trust,” the authors found that on measures evaluating healthcare integrity, 48.5% of people surveyed feel the health system tries hard to be fair in dealing with others. However, 35.5% stated they believe the health system would try to hide a serious mistake; 37% felt they would be told how their health information is used; and only 42.5% believed they would not be misled about health information use.
Richard Gabriel, president of Decision Analysis, has decades of experience working with trial counsel to help analyze how jurors are thinking about themes, witnesses, and the court system. He provides very practical information and suggestions about the general public’s opinions of healthcare, hospitals, and clinicians—and how those opinions can impact medical malpractice litigation. One of his current projects is the Trust in Justice Project which researches, analyzes, and then provides ideas for progress and change regarding why the public is experiencing this erosion of trust in the justice system, which includes not only courts, but also law enforcement and the corrections system. Gabriel and his colleagues have conducted a wealth of research to try and better understand what is motivating this distrust with the justice system.
Gabriel’s analysis shows that personal experiences, beliefs about the way the systems work, along with a news cycle and news media that support a “culture of opinion and conflict,” have all contributed to this significant decline of trust in the justice system. Certainly, these beliefs can have a lasting impact on the systems themselves (for example, distrust in law enforcement generally can impact communities, police department morale, overall trust among the public and the law enforcement community, etc.). Parts of the phase II of the Trust in Justice Project research data illustrate the overall lack of education within the public about the judicial system. Specifically, many of the focus group participants felt that jurors were not “given enough tools or education on the legal principles and procedures in order to better perform their role as factfinders.” Of course, the constant media barrage does not necessarily help with the lack of tools/education about the legal system. Many participants recognized the limitations with competing media content and the inherent bias contained in some or most of that content.
One of the Trust in Justice Project goals is to provide suggestions on how to facilitate change and positively impact the trust level. In the civil litigation realm, the best suggestions relate to the participants’ concerns about education. Law schools, courts, and attorneys all need to place a greater emphasis on educating jurors/potential jurors about the legal system, procedures within the system, and how it works. We need to provide that education in an honest and direct way that the public can understand: including education during voir dire, in witness examinations, and providing general education through immediate and widespread-impact methods like social media.
How Increasing Distrust Impacts Healthcare Claims and Litigation
Hospitals serve communities. They serve court employees, judges, witnesses and, of course, jurors. Everyone brings their own hospital experiences with them to the courthouse—and if the increasing experience of people seeking healthcare is filled with inefficiencies, mistakes, lack of coordination of care, perceived uncaring people, etc., then any deliberations the jurors undertake will be affected. People stop believing hospitals are part of their community and invested in the care provided. In fact, the public’s level of trust in healthcare has already eroded to levels never seen. In a Feb. 23, 2025, Wall Street Journal article titled, “Why don’t we trust doctors like we used to,” Clare Ansberry outlines various reasons why the public is increasingly distrustful of not only insurance companies and “big pharma,” but why that trust erosion is leaking into relationships with hospitals and even individual physicians.
Levels of distrust in individual physicians have declined since 2021. In fact, as Ansberry’s article notes (citing a Gallup poll), about 53% of people surveyed for an annual rating of professions in the “honesty and ethical standards” category gave a “high” or “very high” rating to doctors in 2024. That percentage was 67% in 2021. It represented the largest drop among the 23 professions ranked in that poll. The article discusses various reasons for that decline, including the frustrations about the lack of care coordination and the lack of meaningful and empathetic communication (either real or perceived) from the clinicians to patients and families, not to mention the impact insurance and regulatory requirements have on the ability of doctors and others to make appointments, spend time with patients, and ensure quality follow-up. Add to all of those issues the extraordinary prevalence of social media criticisms, potential remedies to health problems (traditional, alternative, and completely untested or disproven), and sympathetic forums, and it is no wonder the public’s trust in healthcare is at historic lows.
When the trust erodes, it takes a tremendous amount of time and effort to gain it back. Recent verdict and settlement trends are intensified because of that lack of public trust in the healthcare system and providers. The overall defense team (including defense counsel, hospitals and clinical staff, insurers, and every other member of the team) must prepare earlier and more intentionally to address it. Once we address the trust/mistrust/distrust with the healthcare system, we can work more specifically on addressing the substantive clinical care issues involved in the litigation. Trust is such an integral part of the entire process, though, that if a party fails to directly and proactively address the eroding trust in the healthcare system and the healthcare providers who provide the care, it will lack credibility about any other arguments it tries to make in the case.
What Can Be Done To Counteract the Public’s Distrust With Healthcare?
First of all, regaining trust cannot happen overnight. It is a process. It has to be intentional, genuine, and thoughtful. Here are a few actions to consider when trying to restore some of the eroded trust.
Identifying Opportunities Early and Communicating Clearly
Early identification and honest and straightforward communication about the patient’s care is absolutely critical to establishing trust with individual patients and families. But it’s broader than that: like any other product or service, if someone has a good experience, they’ll tell a few friends or family; but if someone has a bad experience, they’ll tell 10, or 20, or 100. With social media, any story has the potential to reach thousands more than historically would occur.
When something unexpected happens during healthcare, sometimes hospitals and their clinical staff do everything to ensure the patients/families have information about what happened and an opportunity to ask questions and understand what’s going on. At other times, the staff are afraid, and/or the culture or the people involved do not support open communication about events and outcomes. Talking with patients and families about bad outcomes is hard, and often, medical, nursing, or hospital administration classes do not train people how to do it. Further, hospitals must develop and regularly reinforce processes and philosophies about communicating early and directly with patients and families. The failure to do that is a serious threat to the fragile nature of patients’ and families’ trust in the healthcare community. Hospitals and clinicians also have the need to protect the integrity of peer review concepts—but there are ways to accomplish both. And the public expects them to do both.
Support and Educate the Clinical Staff
As a situation moves into an asserted claim or litigation, we have to ensure the clinical staff is supported throughout that process—that includes ensuring the clinical team understands what is going on and ensuring they know how they need to be part of the litigation process.
Of course, in the legal arena, a key issue is whether the clinical team met the standard of care. Further, if they did not meet that standard, we need to explain whether that failure caused an injury, and if it did, what was it? However, what we often fail to do is provide context to the judge, mediator, or jurors about “how” that care is provided and “why” the care was provided in that way. Healthcare is something that every single juror, judge, mediator, court reporter, etc. has experienced. We all come with our own experiences, opinions, and biases of how healthcare works and what clinicians do. Involving the clinicians in the legal process, identifying the themes early and figuring out with those clinicians what the context of those themes are in the overall care, and then engaging them with what the themes are and helping them explain it—are essential to provide the framework to decision-makers of what the hospital’s place is in the community, how it provides care to the community, and what happened to the patient in the case at issue. That entire process is critical to create, nurture, and reinforce the trust in the particular hospital, doctor, nurse, and healthcare in general.
Establish Themes Early, Test Them, and Weave Them Throughout the Case
It is difficult for lawyers and hospital administrators to know what people think about the care provided, the people who provide it, or healthcare in general. A litigation team will never get that information unless it figures out what those themes are, tests them—adjusts to the reactions—and then tests again. In the era of the catastrophic “unexpected” verdict, the team absolutely must determine what claims have the potential to reach the catastrophic level and then do the work EARLY. Early identification of those potentially problematic claims and getting ahead of the game will pay for itself because of the information gained, the opportunities to change the defense tenor, and to help improve patient care and/or trust in the healthcare system. We cannot do any of that without understanding where people stand on various issues. Testing is available in a variety of methods—online, in person, theme-testing, overall mock trial, witness testing, etc. In a scarce resource environment, strategically targeting the right cases/themes/witnesses to test is critical.
Be Honest and Constantly Work on Practical Improvements to Safety
Finally, earning, retaining, and restoring trust with the community requires dedication, effort, and honesty. It requires acknowledging shortcomings and times when things did not go as expected. It requires resources—focused on people, research, and strategies to make things better. Most of all, it requires attention and persistence. Why do we still see some of the same claims that were around 20 years ago? Why can’t we figure out how to fix issues like good communication, attention to test results, or listening to patients or families when they’re trying to say something doesn’t seem right? Healthcare quality and patient safety have made progress, but it needs to continue. Hospitals also need to be better about acknowledging when things did not go as smoothly as they should have or when there was a mistake—even if it is difficult. In Pete Buttigieg’s book, “Trust” from 2020, on the subject of trust, he writes that “too often, we think of trust as the product of infallible consistency. But trust is just as often about how we handle failure, and in the wake of failure, people can be astonishingly forgiving.” In the healthcare litigation field, failure does not mean that every case involves a clinical error or mistake, but it does mean that a patient or family believes the healthcare was not good and it caused harm. Hospitals must address those feelings directly and take responsibility for being part of the community—and for providing the community with good, safe, and trustworthy care. And if there are ways in which the healthcare was not good or if there were mistakes, then acknowledge and talk through them. The parties can agree to disagree on what the standard of care required, whether anything caused damage, or what the damages are. Directly discussing the care and its impact on the involved patient(s) is a path to start rebuilding some of the credibility and trust.
About the Author:
Jennifer Hardester is vice president, claims at Berkley Healthcare. jhardester@berkleyhealthcare.com
The views expressed in this article are her own and do not necessarily reflect the views of her past or current employers.