October 2026
Trick or Treatment

Understanding probative value, unfair prejudice, and the role of emotion in trials 

Medical malpractice trials ask jurors to make difficult judgments about complicated medical events. Was the standard of care met? Was the treatment appropriate under the circumstances? Did the care cause the patient's injury? What do the medical records, testimony, and expert opinions establish?

Those questions are often answered through evidence that is technical and methodical: medical records, imaging, laboratory results, timelines, and expert testimony.

But sometimes one piece of evidence can change the way a jury experiences the entire case. A photograph. A video. A description of an injury. A particularly emotional piece of testimony.

Such evidence may be entirely relevant to the case. It may help establish the severity of an injury or explain what a patient experienced. But its emotional force can also affect how jurors perceive the evidence that follows.

That tension is particularly important in MPL, where the underlying facts may involve serious injury, disability, or death. The challenge is not simply determining whether evidence is relevant. It is understanding what the evidence actually proves—and whether its emotional impact could cause it to be considered for reasons beyond its legitimate evidentiary value.

When Evidence Carries Emotional Weight

Consider a courtroom midway through a medical malpractice trial. The medical issues are technical. Experts have discussed anatomy, laboratory values, and treatment decisions. Counsel have spent considerable time explaining the clinical reasoning behind the care at issue.

Then plaintiff’s counsel introduces a photograph. It is not an imaging study or a page from the medical record. It is an ordinary household bucket filled with what appears to be dark red liquid.

The plaintiff offers the photograph as evidence that, after treatment, the patient experienced a severe reaction at home and vomited enough blood to fill the bucket.

The image is difficult to ignore. Jurors who had been following a technical discussion suddenly have something visceral in front of them. The defense still has the same clinical evidence, but the context has changed.

Relevance and Rule 403

The practical concern with shocking evidence is that its ability to command attention may be greater than its ability to establish a disputed fact. The Federal Rules of Evidence govern the admission or exclusion of evidence in U.S. court proceedings. Many states have adopted rules modeled on the Federal Rules of Evidence, but the wording and case law vary by jurisdiction:

• Rule 401 defines relevant evidence: Evidence is relevant if (a) it has any tendency to make a fact more or less probable than it would be without the evidence; and (b) the fact is of consequence in determining the action.
• Rule 402 generally provides that relevant evidence is admissible unless another rule, statute, or constitutional provision provides otherwise.
• Rule 403 provides one of those principal limitations: The court may exclude relevant evidence if its probative value is substantially outweighed by a danger of unfair prejudice, confusing the issues, misleading the jury, undue delay, wasting time, or needlessly presenting cumulative evidence.

Three concepts are particularly important in applying Rule 403:

• Relevance asks whether the evidence tends to establish a fact that matters to the case.
• Probative value concerns how much the evidence helps prove that fact.
• Unfair prejudice is concerned with the danger that relevant evidence will lead the jury to decide a case on an improper basis.

The distinction between prejudice and unfair prejudice is important. Almost all evidence offered in litigation is prejudicial in that evidence that helps one side generally hurts the other. That is not what Rule 403 is designed to prevent.

The concern is unfair prejudice. It involves evidence where the emotional charge is out of proportion to what it actually proves. The notes to Rule 403 expressly recognize the possibility that relevant evidence can induce a decision based on emotion rather than the issues the jury is supposed to resolve.

This does not mean that graphic photos, emotional testimony, or evidence of serious injury should be excluded automatically. In a medical malpractice case, evidence concerning the patient’s condition, although graphic, may offer legitimate probative value in that it is essential to understanding what happened and determining damages.

“Rule 403 arguments are often made in pretrial motions, and I’ve seen judges wrestle with these rulings because it really is a balancing act,” said Barbara Hunyady, ProAssurance Midwest and Northeast Regional Risk Manager. “Judges are hesitant to exclude relevant evidence, but they also have to decide when that evidence crosses the line and becomes unfairly prejudicial.”

The court must weigh the evidence’s legitimate ability to prove a fact against the potential harm from admitting it. If an injury is already established and an additional photograph contributes relatively little factual information while adding substantial emotional force, that photo could present unfair prejudice.

The distinction is important because a defense argument that an exhibit is shocking is not necessarily an argument that it should be excluded. The more useful questions are:

• What fact does the evidence actually help establish?
• How strong is that evidentiary value?
• Is that fact disputed?
• Is the evidence properly connected to the facts of the case?
• Is substantially similar information available through less prejudicial evidence?
• Could the evidence confuse or mislead the jury?
• Does its emotional impact create a meaningful risk that jurors will use it for an improper purpose?

These questions are ultimately matters for the court to address and highly dependent on the circumstances of an individual case.

What Research Tells Us About Emotion and Evidence

The concern about shocking evidence is not merely theoretical. A research study found that “gruesome” photographs (meaning in this context gory, bloody, or violent photographs of injury or death to a human body) had a small but statistically significant effect on legal decisions, increasing guilty or liable verdicts or punishments. The effect was considerably larger when gruesome photographs were compared with no photographs at all than when they were compared with neutral photographs.

As technology expands how evidence can be captured and presented (e.g., body-camera footage, cell phone recordings, and AI-generated recreations), courts face new challenges in managing evidence that can evoke powerful emotional responses.

Rather than telling jurors to set emotions aside, courts can address the emotional impact of evidence itself and offer approaches to mitigating emotional effects. These include carefully constructed jury instructions as well as presenting gruesome photographs in black and white rather than color to help reduce the emotional response while preserving the information the evidence conveys.

The Bucket and Pretrial Strategy

The bucket photograph illustrates why the distinction between relevance, probative value, and unfair prejudice matters.

Defense counsel may question the foundation for the evidence—whether there is a sufficient connection between the exhibit and what the plaintiff claims it represents. They could argue that the photograph itself does not establish whether the substance was actually blood, how much liquid the bucket contained, when the event occurred, or what (even who) caused it. Those may be important questions, but they do not necessarily make the photograph inadmissible.

The plaintiff, meanwhile, may argue that the photograph helps illustrate the severity of the patient’s experience and supports testimony about exactly what occurred after treatment. If the court determines that the photograph is relevant and its probative value is not substantially outweighed by the dangers identified in Rule 403, it may be admitted.

Once that happens, the defense has to address it. Cross-examination can challenge what the photograph actually establishes, expert testimony can provide clinical context, and counsel can distinguish between what the image shows and what the jury is being asked to infer from it.

None of those tools, however, will change the fact that the jury has seen the image. That is why potentially shocking evidence is often worth identifying early in the case.

A motion in limine allows counsel to ask the court to rule in advance on whether particular evidence may be presented at trial. For evidence likely to make a strong first impression, like the bucket, that timing can be important. If the court excludes the evidence, the jury never sees it. If the court admits it, counsel has an opportunity to prepare for the exhibit and develop its context and limitations rather than encountering it for the first time in front of jurors.

For MPL defense teams, the practical lesson is not that shocking evidence should be expected to stay out of the courtroom. It is that potentially significant exhibits should be evaluated early. In a case where the medicine is complicated and the evidence is emotionally powerful, that preparation can be as important as understanding the underlying medical record.

“Experienced defense attorneys often recognize well before trial when highly charged evidence may become an issue,” said Hunyady. “A motion in limine may result in its exclusion or, if the court allows the evidence, help preserve the issue for potential appeal. At trial, skilled attorneys can also use a variety of strategies to diffuse its impact and keep the jury focused on the relevant facts.”

Evidence of injury and suffering can be both highly relevant and emotionally difficult. Rule 403 does not require a courtroom to be free of emotion. Rather, it provides a mechanism for courts to weigh the legitimate evidentiary value of relevant material against the danger that it could unfairly prejudice, confuse, or mislead the jury.

For those involved in medical professional liability, that distinction is worth understanding. The facts remain at the center of the defense, but how those facts are presented can influence how a jury understands the case. Preparing for both is part of preparing for trial.

To help determine the cause of death when the local Medical Examiner’s (ME’s) office was severely backed up, hospital radiologists were requested to perform peri-mortem CT scans on recently deceased patients. Radiologists had never been asked to perform these imaging requests so they contacted ProAssurance Risk Management for advice. I discussed risks with them such as lack of medical necessity and HIPAA considerations involving a deceased patient. Did the hospital’s request carry the same legal weight as the local ME's? Though the ME may not need consent under federal or state law to request medical records and additional testing related to a death determination, a hospital may not carry those same permissions. The group raised questions about where and how best to document radiology services in a hospital chart after death. Training was also an issue. Post-mortem scans and interpretation differ from imaging done on a living body because of changes occurring after death, and accurate interpretation requires special training. It was also prudent to be aware of billing obstacles for radiology performed on a dead patient to avoid inadvertent fraudulent billing or accepting money that had been contractually bound for the ME.

With this issue’s focus on medical horror stories, there seems no better time to discuss the nocturnal, blood-sucking parasites that elicit fear and panic in, well, just about anyone—bed bugs! Cimex lectularius, or common bed bugs, are small, flat, reddish-brown insects that feed on the blood of a host at night and hide in crevices of furniture, walls, and floors during the day. They do not fly and tend to remain within 8 feet of a blood source, but they can travel 100 feet in a single night. Although not known to spread disease, bed bug bites may cause skin rashes, itching, lost sleep, general psychological distress, and, rarely, allergic reactions.¹

Medical offices are high-traffic public areas where bed bugs can stow away on patient and visitor clothing and personal items and transfer to waiting room seating, exam tables, or reusable patient-care equipment. Managing bed bugs in a medical practice office can be challenging, and a sensitive topic to discuss with patients.

OSHA’s General Duty Clause requires employers to furnish a workplace free from “recognized hazards … likely to cause death or serious physical harm.”² While OSHA does not have a specific standard concerning bed bugs, standard 1910.141(a)(5) requires that workplaces are “constructed, equipped, and maintained, so far as reasonably practicable, as to prevent the entrance or harborage of rodents, insects, and other vermin.” Healthcare organizations should promptly address pest-related concerns, including instituting regular and effective extermination programs, to support a safe workplace for team members. When the setting is a healthcare facility, there is the additional responsibility of meeting the highest levels of environmental safety for patients, too. While bed bugs are an unsettling and disruptive problem, they also present important infection control and workplace safety challenges, which must be mitigated immediately as infestations can occur quickly.

Senior Risk Management Consultants Gerryann Whalen and Joanne Simmons share two examples of bed bug exposure in healthcare settings: one in a physician office and one in a hospital. Both situations underscore the need to act promptly, protect patient dignity, continue necessary care, document objectively, and use a clear response process to reduce the risk of spread.

Office scenario: A medical practice contacted the Risk Helpline after treating a patient for a bed bug-related rash and later learning the patient had an active infestation at home. In another visit, staff believed they found a bed bug after the patient left the office. The practice was concerned about exposure to other patients and staff, patient privacy, and how to respond appropriately because no formal process was in place.

Risk Management recommendations for medical practices:

Patient Response

• Continue necessary care and avoid delaying treatment solely because bed bugs may be involved.
• Speak with the patient privately and respectfully to avoid embarrassment, stigma, or unnecessary disclosure.
• Reassure the patient that bed bugs can occur in any setting and are not a reflection of personal hygiene.
• Explain temporary precautions, such as limiting personal items into the medical office and placing belongings in a plastic bag during the visit.
• Escort the patient directly to an exam room when appropriate to reduce their time in shared spaces.
• Provide education on identifying bed bugs, reducing clutter, laundering bedding and clothing with high heat, avoiding movement of infested items, and contacting a qualified pest-management professional.
• Confirm the patient understands the importance of treating the home environment to reduce continued exposure and spread.
• Refer the patient to local resources when assistance is needed, such as a county health department, housing authority, landlord, or social service agency. In some states, landlords may have legal responsibilities related to infestation treatment, and some agencies may offer emergency assistance for eligible households.³

Practice Response

• Notify the designated manager, infection control contact, or other responsible person as soon as bed bugs are suspected.
• Document the event objectively, including what was observed, where the bed bug(s) was found, actions taken, and patient education provided.
• Inspect exposed areas and items including waiting room chairs, exam tables, wheelchairs, and shared equipment.
• Close suspected or affected rooms until inspection and appropriate cleaning or treatment are completed.
• Post clear “Do Not Enter” signage when an area is temporarily closed.
• Use disposable PPE when staff must handle potentially contaminated belongings or high-risk items.
• Contact a qualified pest-management company when confirmed or suspected infestation exceeds the practice’s ability to manage safely.
• Train staff to recognize signs of bed bugs, report concerns promptly, protect patient privacy, and follow the response process.
• Review the incident after it is resolved and update the practice’s policy or workflow to clarify who to notify, how to limit spread, and when to involve infection control or pest-management personnel.
• Conduct follow-up inspections as recommended by pest-management professionals.

Hospital scenario: Bed bugs were identified on the clothing and belongings of a hospitalized patient. The case manager helped coordinate discharge planning to support a safe transition while the hospital addressed exposure concerns within the facility.

Risk Management recommendations for medical facilities:

• Conduct follow-up inspections as recommended by pest-management professionals.
• Review the hospital’s bed bug, environmental services, and infection prevention policies.
• Notify Infection Prevention and Control immediately so the response can be coordinated through the appropriate departments.
• Coordinate next steps with Environmental Services, Facilities, nursing leadership, and qualified pest-management personnel.
• Involve Employee Health, Case Management, or Social Work when staff exposure, discharge planning, housing concerns, or patient support needs are identified.
• Continue medically necessary care while using reasonable precautions to protect staff, patients, and visitors.
• Place the patient in a private room when feasible and consistent with hospital policy.
• Contain the patient’s clothing and personal belongings according to infection prevention and environmental services procedures.
• Document the event, actions taken, departments notified, patient education provided, and discharge-planning considerations.
• Plan discharge carefully when housing, environmental safety, or support needs may affect the patient’s ability to return home safely.

Risk note: Refusing care or terminating a patient relationship because of bed bug exposure may raise patient abandonment or discrimination concerns. Healthcare organizations should continue necessary care while using reasonable precautions, objective documentation, patient education, and appropriate environmental controls to reduce exposure risk.

*Data from the ProAssurance Risk Management Helpline showed 12 bed bug or other pest-related calls from 2022 to 2026. Concerns varied from patients having bed bugs to finding the bugs in the home, and the appropriate practice protocols for handling infestations. It was asked whether telehealth was recommended over live appointments, if a practice should dismiss a patient if their home was thought to be infested (advised against), and whether to terminate patients who were noncompliant with treatment.