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Defending Medical Malpractice Lawsuits
Trying the “Gray Area” Cases1
Elements of the Medical Malpractice Claim: Written Discovery Although written discovery tends to simply be an exchange of the aforementioned
By Robert C. Seibel and J. Thaddeus Eckenrode
Undertaking the representation of a medical professional or institution being sued for
medical negligence presents the defense attorney with a variety of interesting challenges.
Almost all malpractice cases involve a serious, if not devastating or crippling injury,
complication, or death. Juror sympathy for the plaintiff is highly probable. The defense
attorney’s first job, in conjunction with the healthcare provider’s professional liability
insurance carrier, is to try to accurately assess the case at the earliest possible stage. A
predictable small percentage of cases will present as such clear liability matters that
defense counsel and the insurance company may try to promptly settle these cases,
where possible, to avoid needless additional litigation expense to the carrier or disruption
of 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 accurately
ascertained in the early stages without some formal or informal discovery. Even so, very
few “clear liability” cases ultimately make it to trial.
Another small percentage of cases are so clearly merit less and defensible, of course, that
they 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 (sometimes
correctly) 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, with
the introduction in 1986 of both Missouri’s medical malpractice statute2 (discussed
infra), and the development of the National Practitioner Data Bank, 3 professional
liability insurance companies and their claims departments are likely to force a plaintiff
to 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 listed
with the Data Bank.
Defending a non-meritorious case, or settling a clear liability case, are easy decisions to
make. Medicine itself, of course, is rarely black and white, and the majority of medical
malpractice 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 was
malpractice, and we know that we can find an expert to say that there was not. Some of
these cases get settled, and some must be tried. Statistics suggest, of course, that even the
great 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 a
case vary from insurance company to insurance company, and physician to physician.
Sometimes the amount for which a case can be settled, measured against the downside
verdict potential, plays a role. Sometimes it does not. Sometimes the trial venue or the
appearance of the parties themselves plays a role. Sometimes they do not. Despite their
belief to the contrary, the identity of the plaintiff’s attorney himself rarely factors into the
decision. Professional liability carriers today require defense counsel who are committed
to the proposition that the “gray area” cases can, and need to be tried. Ultimately, the
most interesting and important challenge to the defense attorney is in preparing to try the
“gray area” case.
Service of Suit
The first key to successfully defending any case, in our opinion, is to prepare the case
from the outset with the assumption that the case will go to trial. Despite statistics to the
contrary, we do not believe in assuming that a case will settle or be dismissed.
Preparation for trial, therefore, begins the moment that we receive the petition from the
insurance company. The initial inquiry is whether there are any immediate defenses to be
raised by motion5 (i.e., improper venue,6 statute of limitations violations,7 etc.). Then we
turn to the allegations themselves. Although Missouri is a “fact pleading” state,8 most
judges in the various eastern Missouri counties in which we have appeared seem to take
a dim view of motions for more definite statement, motions to strike, etc. Many
insurance 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 to
simply file an answer and to commence meaningful discovery.
A review of the allegations of negligence should provide a general overview of the
claims being made against the defendant, but frequently we see completely different
allegations or criticisms of the defendant by the time plaintiff’s expert is deposed.
Obviously, therefore, the limited claims made in the petition should not restrict defense
counsel’s evaluation of the care provided by the defendant in the case.
The Affidavit of Merit
Pursuant to statute,9 a plaintiff must file an affidavit attesting that plaintiff’s attorney has
obtained the written opinion of a physician who finds plaintiff’s claim to have merit. It is
a statute with bark, but little bite, and probably is the neutered result of legislative
compromise. The statute does not require the plaintiff to actually produce the “written
opinion” or to even disclose the identity of the reviewing expert, allowing for the
possibility for an attorney of questionable ethics to file such an affidavit without actually
having had the case reviewed. The statute requires that a separate affidavit be filed as to
each defendant within 90 days of suit or the case is subject to dismissal. We frequently
see motions filed on behalf of some defendants because a “separate” affidavit has not
been filed as to each defendant, but we believe that to be a waste of our client’s money to
pursue if the plaintiff’s affidavit mentions our client somewhere. We will vigorously
pursue dismissal if no affidavit has been filed, although most judges seem willing to give
a 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 any
frequency at all, however, will usually voluntarily dismiss a case if they have not already
found an expert within 90 days. Sometimes it takes the filing of the motion to prompt
that action, and we recommend that defense counsel make an effort to promptly seek
dismissal of those suits where plaintiff’s counsel has failed to timely file the required
statutory affidavit.
Early Case Investigation
An early meeting with the defendant healthcare provider is important. Defense counsel
has the opportunity to assess him as a witness, determine what problems he sees (or is
willing to admit) with the case, and to get him focused on the seriousness of the matter
and the need to stay in touch with us. We try to collect the relevant medical records as
quickly 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 we
want to spend the time and money to depose a records custodian.
Once the records are obtained, we evaluate and compare the allegations of the plaintiff’s
petition against the records. This frequently allows us some insight into whether the
plaintiff’s attorney has had the case reviewed, or whether he is so off base that the
petition must have been based solely upon his client’s story. We also try to get the
records into the hands of a good reviewing expert as promptly as possible. This helps us
with the ever-critical early assessment of the case, and in determining if the story our
client tells us really holds water.
We find the use of nurse-paralegals of great importance in preparing the defense of
malpractice cases and to be the most significant paraprofessional support that is available
to defense counsel. A well-organized and complete medical chronology, bound and
indexed medical records, and preliminary medical literature research prepared by a good
nurse-paralegal is almost essential in allowing defense counsel to understand and locate
the key medical information, and to thereafter focus ongoing discovery efforts.
Negligence and Causation
Like any personal injury tort claim, a medical malpractice case requires that the plaintiff
establish the defendant’s negligence, and a causal relationship between the negligence
and plaintiff’s injury. Negligence in a medical malpractice case is defined specifically in
the Missouri Approved Jury Instructions as the “failure to use that degree of skill and
learning ordinarily used in the same or similar circumstances by members of defendant’s
profession.”1O Until trial itself, most attorneys simply refer to this as the “standard of
care,” which is a phrase used throughout the pendency of a case during expert
depositions, 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’s
proof, without which, plaintiff does not make a submissible case.’11
Plaintiff must also prove that “but for” the defendant’s negligence, plaintiff would not
have suffered the injury alleged.12
The recent trend of using “pattern” discovery in St. Louis City civil courts’3 has taken
some of the creativity and “heat” out of interrogatories, objections to which once seemed
to keep the courts’ motion dockets going for hours. Although that is a good thing, we
still believe that it is important to review and note the answers to some of the pertinent
pattern questions, i.e., identity of treating physicians, experts, and witnesses, damages
claimed, employment history, etc. A diligent defense attorney will not leave a question
unanswered, partially answered or with an objection unresolved without approaching the
court for relief. Otherwise, he might find himself facing a surprise witness at trial who he
cannot keep from the witness stand simply because the witness was not identified, if
plaintiff’s vague answer or objection to the interrogatory was never taken up and ruled
upon.14
“pattern” discovery these days, nothing prevents counsel from preparing or utilizing
supplemental requests or additional interrogatories,15 and well crafted and case-specific
written discovery can help isolate issues, and weed out irrelevancies at trial.
Plaintiff’s Deposition
The deposition of the plaintiff is necessary, but infrequently of overwhelming benefit,
since plaintiffs themselves often have minimal recall or understanding of the truly
important medical issues. The deposition is important, however, to allow defense
counsel to tie down the story to be told factually at trial, and to determine how the noneconomic”damage claim will be described. To that end, of course, the deposition of the
plaintiff should almost always be secured, unless there is some reason to believe the
plaintiff might die before his/her testimony is otherwise memorialized.
Defendant’s Deposition
The defendant doctor’s deposition, on the other hand, is, in many respects, the most
important part of preparing the defense case. Substantial pre-deposition preparation of
the defendant is sometimes the critical difference in a malpractice case. A defendant who
does not listen carefully or whose answers ramble on may inadvertently say something
that exposes him to a verdict without ever meaning to do so. The line between conduct
which meets the “standard of care” and that which is outside the standard of care is often
thin, blurred and potentially still evolving. A question posed to the defendant that leaves
out certain important facts may lead to a deposition answer that is not truly relevant to
the case itself, and if taken out of context at trial, may seem to the jury to be an
admission against the defendant’s interest. To that end, defense counsel must listen
carefully to the questions put to the defendant, and be prepared to lodge the appropriate
objections.
There are a variety of questioning tactics or styles for which the defendant should be
prepared. Some plaintiff’s attorneys bore into the defendant aggressively and
accusatorily. Others are slow and detail oriented. Some are almost apologetic in tone and
try to “buddy up” to the defendant. Many attorneys use one or more of these methods
purposefully, while for others, it may simply be their general style. No matter what,
however, the defendant should be alerted to concern himself more with what is being
asked, not how it is being asked. Despite the oft-repeated mantra of “just answer the
question,” the most difficult thing in preparing a physician for his deposition is
frequently trying to convince him that he will not talk plaintiff’s counsel out of the suit
by going on endlessly, trying to oversell his medical knowledge.
Although the plaintiff’s expert has likely come to some preliminary opinions based upon
his initial review of the medical records, his review of the defendant’s deposition will be
his first opportunity to learn about why the defendant did some of the things he did, and
it will (depending on the extent of plaintiff’s counsel’s examination) illuminate details
that may not appear in the medical records and accompanying office notes. If well
prepared, and by answering carefully and articulately, the defendant physician can force
a reasonable plaintiff’s expert to either limit his criticisms or to concede important
elements of the defense case.
It is rarely good strategy for defense counsel to ask any questions of the defendant on
crossexamination, since that may just remind the plaintiff’s counsel of additional
questions to cover, and is not likely, in most cases, to flush out an answer that will cause
the plaintiff’s expert to completely change his opinions. The general rule almost always
applies to defending the defendant doctor’s deposition: keep the answers honest, short,
and responsive to the question asked. Despite extensive pre-deposition preparation, even
the most intelligent and savvy doctors still remain unpredictable once the deposition
begins, and may yield to the temptation to say too much.
Expert Witnesses and Discovery
Medical malpractice cases are unique in that expert testimony is generally requiredl6 of
the plaintiff in order for the plaintiff to make a prima facie and submissible case.
Although the defendant is not required to offer expert testimony, a defense expert is
usually offered in order to counter the fact that the plaintiff offered “expert” testimony.
Despite the recent attacks on “junk science” and the Daubertl7 case, it still requires very
little to qualify as an “expert” witness in medical negligence
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