Defending Medical Malpractice Lawsuits - …

1 Defending Medical Malpractice LawsuitsTrying the Gray Area Cases1By Robert C. Seibel and J. Thaddeus EckenrodeUndertaking the representation of a Medical professional or institution being sued formedical negligence presents the defense attorney with a variety of interesting all Malpractice cases involve a serious, if not devastating or crippling injury,complication, or death. Juror sympathy for the plaintiff is highly probable. The defenseattorney s first job, in conjunction with the healthcare provider s professional liabilityinsurance carrier, is to try to accurately assess the case at the earliest possible stage. Apredictable small percentage of cases will present as such clear liability matters thatdefense counsel and the insurance company may try to promptly settle these cases,where possible, to avoid needless additional litigation expense to the carrier or disruptionof time to the physician. Many of those cases cannot be resolved quickly, however,because damages (and therefore the potential value of the case) cannot be accuratelyascertained in the early stages without some formal or informal discovery.

2 Even so, veryfew clear liability cases ultimately make it to small percentage of cases are so clearly merit less and defensible, of course, thatthey should be vigorously defended through trial, if not otherwise dismissed earlier,either voluntarily or by motion. Several years ago, we saw a greater number of these frivolous cases, at a time when some plaintiff s attorneys believed (sometimescorrectly) that professional liability insurance carriers would, at some point in the case,make a nominal or cost of defense settlement offer. Over the past decade or so, withthe introduction in 1986 of both Missouri s Medical Malpractice statute2 (discussedinfra), and the development of the National Practitioner Data Bank, 3 professionalliability insurance companies and their claims departments are likely to force a plaintiffto file a healthcare affidavit 4 before ever considering settlement, and physicians with consent policies may object to any payment that would require their name to be listedwith the Data a non-meritorious case, or settling a clear liability case, are easy decisions tomake.

3 Medicine itself, of course, is rarely black and white, and the majority of medicalmalpractice cases, therefore, will fall into a vast gray area. In these gray area cases,we know that the plaintiff will be able to find an expert to testify that there wasmalpractice, and we know that we can find an expert to say that there was not. Some ofthese cases get settled, and some must be tried. Statistics suggest, of course, that even thegreat majority of these cases will ultimately be settled, although the wisdom of settling gray area cases should be debated. The factors that go into the decision to settle such acase vary from insurance company to insurance company, and physician to the amount for which a case can be settled, measured against the downsideverdict potential, plays a role. Sometimes it does not. Sometimes the trial venue or theappearance of the parties themselves plays a role. Sometimes they do not. Despite theirbelief to the contrary, the identity of the plaintiff s attorney himself rarely factors into thedecision.

4 Professional liability carriers today require defense counsel who are committedto the proposition that the gray area cases can, and need to be tried. Ultimately, themost interesting and important challenge to the defense attorney is in preparing to try the gray area of SuitThe first key to successfully Defending any case, in our opinion, is to prepare the casefrom the outset with the assumption that the case will go to trial. Despite statistics to thecontrary, we do not believe in assuming that a case will settle or be for trial, therefore, begins the moment that we receive the petition from theinsurance company. The initial inquiry is whether there are any immediate defenses to beraised by motion5 ( , improper venue,6 statute of limitations violations,7 etc.). Then weturn to the allegations themselves. Although Missouri is a fact pleading state,8 mostjudges in the various eastern Missouri counties in which we have appeared seem to takea dim view of motions for more definite statement, motions to strike, etc.

5 Manyinsurance companies now encourage defense counsel to avoid needless motion practice,so unless the petition is so unreasonably defective as to make it nonsensical, we prefer tosimply file an answer and to commence meaningful review of the allegations of negligence should provide a general overview of theclaims being made against the defendant, but frequently we see completely differentallegations or criticisms of the defendant by the time plaintiff s expert is , therefore, the limited claims made in the petition should not restrict defensecounsel s evaluation of the care provided by the defendant in the Affidavit of MeritPursuant to statute,9 a plaintiff must file an affidavit attesting that plaintiff s attorney hasobtained the written opinion of a physician who finds plaintiff s claim to have merit. It isa statute with bark, but little bite, and probably is the neutered result of legislativecompromise. The statute does not require the plaintiff to actually produce the writtenopinion or to even disclose the identity of the reviewing expert, allowing for thepossibility for an attorney of questionable ethics to file such an affidavit without actuallyhaving had the case reviewed.

6 The statute requires that a separate affidavit be filed as toeach defendant within 90 days of suit or the case is subject to dismissal. We frequentlysee motions filed on behalf of some defendants because a separate affidavit has notbeen filed as to each defendant, but we believe that to be a waste of our client s money topursue if the plaintiff s affidavit mentions our client somewhere. We will vigorouslypursue dismissal if no affidavit has been filed, although most judges seem willing to givea plaintiff up to 60 days additional time upon request when told that someone is currently reviewing the case. Most plaintiffs attorneys who handle Malpractice cases with anyfrequency at all, however, will usually voluntarily dismiss a case if they have not alreadyfound an expert within 90 days. Sometimes it takes the filing of the motion to promptthat action, and we recommend that defense counsel make an effort to promptly seekdismissal of those suits where plaintiff s counsel has failed to timely file the requiredstatutory Case InvestigationAn early meeting with the defendant healthcare provider is important.

7 Defense counselhas the opportunity to assess him as a witness, determine what problems he sees (or iswilling to admit) with the case, and to get him focused on the seriousness of the matterand the need to stay in touch with us. We try to collect the relevant Medical records asquickly as possible. This process is often easier if there are codefendants in the case,since we can exchange our clients respective records. When we are on our own,collecting records means waiting for signed authorizations from the plaintiff, unless wewant to spend the time and money to depose a records the records are obtained, we evaluate and compare the allegations of the plaintiff spetition against the records. This frequently allows us some insight into whether theplaintiff s attorney has had the case reviewed, or whether he is so off base that thepetition must have been based solely upon his client s story. We also try to get therecords into the hands of a good reviewing expert as promptly as possible.

8 This helps uswith the ever-critical early assessment of the case, and in determining if the story ourclient tells us really holds find the use of nurse-paralegals of great importance in preparing the defense ofmalpractice cases and to be the most significant paraprofessional support that is availableto defense counsel. A well-organized and complete Medical chronology, bound andindexed Medical records, and preliminary Medical literature research prepared by a goodnurse-paralegal is almost essential in allowing defense counsel to understand and locatethe key Medical information, and to thereafter focus ongoing discovery of the Medical Malpractice Claim:Negligence and CausationLike any personal injury tort claim, a Medical Malpractice case requires that the plaintiffestablish the defendant s negligence, and a causal relationship between the negligenceand plaintiff s injury. Negligence in a Medical Malpractice case is defined specifically inthe Missouri Approved Jury Instructions as the failure to use that degree of skill andlearning ordinarily used in the same or similar circumstances by members of defendant sprofession.

9 1O Until trial itself, most attorneys simply refer to this as the standard ofcare, which is a phrase used throughout the pendency of a case during expertdepositions, etc. Establishing a deviation from the standard of care by the defendant(usually through the testimony of plaintiff s expert) is a required element of plaintiff sproof, without which, plaintiff does not make a submissible case. 11 Plaintiff must also prove that but for the defendant s negligence, plaintiff would nothave suffered the injury DiscoveryThe recent trend of using pattern discovery in St. Louis City civil courts 3 has takensome of the creativity and heat out of interrogatories, objections to which once seemedto keep the courts motion dockets going for hours. Although that is a good thing, westill believe that it is important to review and note the answers to some of the pertinentpattern questions, , identity of treating physicians, experts, and witnesses, damagesclaimed, employment history, etc. A diligent defense attorney will not leave a questionunanswered, partially answered or with an objection unresolved without approaching thecourt for relief.

10 Otherwise, he might find himself facing a surprise witness at trial who hecannot keep from the witness stand simply because the witness was not identified, ifplaintiff s vague answer or objection to the interrogatory was never taken up and written discovery tends to simply be an exchange of the aforementioned pattern discovery these days, nothing prevents counsel from preparing or utilizingsupplemental requests or additional interrogatories,15 and well crafted and case-specificwritten discovery can help isolate issues, and weed out irrelevancies at s DepositionThe deposition of the plaintiff is necessary, but infrequently of overwhelming benefit,since plaintiffs themselves often have minimal recall or understanding of the trulyimportant Medical issues. The deposition is important, however, to allow defensecounsel to tie down the story to be told factually at trial, and to determine how the non-economic damage claim will be described. To that end, of course, the deposition of theplaintiff should almost always be secured, unless there is some reason to believe theplaintiff might die before his/her testimony is otherwise s DepositionThe defendant doctor s deposition, on the other hand, is, in many respects, the mostimportant part of preparing the defense case.