The Rubber Band Secret and What Could Be
As a medical malpractice trial lawyer, I’ve become obsessed with the power of potential. Every time I face the jury, I could be a winner, and I could be a loser. It’s both exhilarating and terrifying, and both outcomes are staring me in the face, obvious as can be, every day of the trial. Sometimes what could be is a not so obvious. I once had a trial where the patient’s expert said my client had caused a nerve injury with a retractor. During the trial, he described the retractor to the jury in ominous detail.
“It’s a big, metal tool with sharp edges. This big metal tool was handled negligently in this case, and now the patient has a permanent nerve injury.”
I stood to cross examine the expert. “Tell us again about this retractor–how big did you say it was?”
“They differ, but anywhere from the size of a ruler to the size of my forearm.”
“And you told the jury it is metal, right?” Here, the expert started to falter.
“It doesn’t really matter what it was made of–what matters is that Dr Smith handled it negligently, and now Mrs Morris will never walk normally again.”
I reached into my pocket, and pulled out something that resembled a blue rubber band, about six inches long with a tiny hook on one end. “Doctor, I want you to assume that THIS is the retractor used during this surgery. If that’s true, then everything you’ve told the jury is just plain wrong, isn’t it?”
Someone on the jury laughed. He was laughing at the expert, sure. He was also laughing at the power of potential. A retractor could be a great big scary metal tool. But once the juries saw that it could also be a small, rubber band type thing, their entire experience changed. We won that case, but soon after Dr Smith quit practicing medicine. She couldn’t stand to see her patients as potential opponents in lawsuits.
Rubber bands themselves may hold the secret to the power of potential. In 1987, researchers did an experiment that showed how rubber bands illustrate the power of what could be. As part of that experiment, subjects were given a rubber band and a pencil. They were asked to write something with the pencil, and later asked to erase it–but the pencil had no eraser. Some of the subjects had been told “This IS a rubber band”, and some had been told “This COULD BE a rubber band”. Only 3% of those who were told “this IS a rubber band” thought to use the rubber band as an eraser. But 40% of those told “this COULD BE a rubber band”, saw that it could also be an eraser. When you tap into the power of potential, you see solutions that are otherwise unavailable.
After 20 years of defending providers in medical malpractice cases, I know that potential doesn’t begin in the courtroom. There is potential every time a patient steps into a doctor’s office. The patient could be on the verge of better health and a more active, less painful life–or on the precipice of a complication with catastrophic consequences. And the provider could be about to begin a healthy relationship where she is both teacher and student. But the potential begins even sooner. It starts when every member of the healthcare teams decides how they will approach this interaction. The patient could be an active leader of the healthcare team, rather than the subject of prodding and poking. The medical assistant could be the source of positive energy for the patient and her caregiver. The patient’s caregivers could be vulnerable and appreciative, reminding providers why they do what they do. Every member of the healthcare team could be working every day to make sure the entire team is working at its highest potential.
A rubber band is a rubber band–but it could also be an eraser, used to undo mistakes and allow for new beginnings. What could be available for you today?
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