This article appeared in the Summer 2020 Edition of The Justice Bulletin of the South Carolina Association for Justice.
Serving as a litigation nurse for 24 years allowed me to gain insight into what can go right and wrong when litigating medical malpractice cases. Medical malpractice cases are some of the most expensive cases to bring and often the most difficult to win. Over the years, I celebrated victories with talented trial teams and felt the stings of disappointment when juries returned defense verdicts. Looking back on the latter, I believe most of these cases suffered from similar shortcomings – many of which were curable or preventable. With hopes of helping others achieve more victories (and fewer disappointments), below, I share what in my experience are the Top 8 Reasons Why Good Attorneys Lose Medical Malpractice Cases.
Before getting into a substantive discussion, it would be a disservice not to emphasize that medical malpractice litigation is not for the faint of heart for any number of reasons including, but certainly not limited to the fact that not every allegation of medical malpractice is worthy of a lawsuit. In addition, health care providers often enjoy a “home-field advantage.” As such, plaintiffs must be prepared to bring their best game when stepping on to the field.
One must understand that economic factors involved in pursuing a medical malpractice claim often determine whether a claim is viable for better or worse. There are many different business models for success, but it boils down to case selection more often than not. The case selection process, if done properly, helps ensure the best return for the client(s), attorney(s), and firm(s). Realistic expectations should also be set for litigation costs, necessary resources, and the timetable for return on investment.
Attorneys contemplating the prosecution of a medical malpractice case should also consider their experience and expertise. The American Bar Association estimates that 60% of all legal malpractice suits arise from an attorney working in an unfamiliar practice area, not understanding applicable laws or specialized procedures.[i] In short, “dabbling” can ultimately lead to ruin. Well-considered case selection and medical analysis can reduce litigation costs, the expenditure of resources, and act as a strong firewall against avoidable disappointments, or more troubling, legal malpractice claims. As a result, I would recommend medical malpractice cases such as nursing home abuse only be prosecuted by a firm who have chosen medical negligence as their specialty. Those without experience may be better served by referring such cases to experienced attorneys.
- Poor Case Selection
Any attorney working with me has undoubtedly heard my mantra: “good case selection is the key to success.” In general, case selection includes consideration of elements of negligence, negative attributes, jurisdiction, and venue. I discuss each in more detail below.
- Elements of Negligence
The four elements of negligence must be considered when trying to obtain a mutually beneficial outcome for both clients and attorneys. Many attorneys allocate resources to cases with great liability (clear duty and breach of that duty), but that also have weak or non-existent causation or limited damages. Using a risk stratification analysis, this places the case at a higher risk for net loss and, as such, is not often a smart investment. There are always exceptions, but this should not be the general rule. Ultimately, due diligence in addressing all elements is necessary before filing. One of the best rules-of-thumb to follow, as stated by Chad McGowan of McGowan Hood & Felder, “it is not what we believe; it is what we can prove in a court of law.” While cost control is always a consideration, an early quality medical analysis is worth the investment. In failing to weigh all elements, attorneys run the risk of losing money as well as valuable time that could have been applied to a more lucrative case. Think of each case as an investment. What are the ultimate returns you are seeking? How valuable is your time?
- Negative Attributes
I cannot stress this one enough! Know your client before you take the case. The best cases can be lost if a client’s negative attributes poison the jury. There are three elements to consider:
- Client Likeability: Every attorney should ask themselves, do I like this person? If your gut tells you to run, you should run. The best rule of thumb is if you don’t like the client, a jury won’t either.
- Injured Person’s Behavior (as documented in the medical records): It is particularly important to note how the medical records portray the injured person’s behavior. For example, non-compliant behavior, addiction history, smoking, and elective abortions are hot button issues. While our personal feelings should not play into this analysis, it is essential to consider how a jury will feel about the person once these behaviors are exposed.
- Injured Person’s Current Behavior (and/or family members): Attorneys must investigate the client’s actions (and potential public perception) on social media. Attorneys need to be cognizant of any possible negative perceptions and make all attempts to mitigate those from the onset. Off-putting pictures and/or diatribes (whether political or otherwise) on social media can be fatal to a medical malpractice case’s success.
In general, a brutally honest perspective by attorneys or their staff about negative attributes may assist in getting a better sense of the client and how they may appear before a jury, how they view authority, follow direction, and how a defendant or its insurance carrier will perceive them. Let’s face it; most cases are resolved. If you have a likable client, not only will the jury probably like them, but their likeability will not be an impediment to and advantageous pre-trial resolution. Few things are more discouraging than a client who wants to “tell their story” and begins to point and yell at the Defendant while pounding on the banister in the middle of the trial. There are some cases where negative attributes cannot be mitigated. In these cases, you should walk away.
- Jurisdiction and Venue
Jurisdiction should be a consideration as the proceedings vary between state and federal court. Federal court cases tend to move much faster. A federal case is more likely to get on a “rocket docket.” In federal court, I have found it is best to have your experts lined up, and their reports prepared or ready to be prepared before you file the case. Entering into a federal court scheduling order without asking for more time, and ensuring your expert reports are submitted on time (if not earlier), puts immense pressure on a defendant. Another potential advantage of federal court is that it is not always necessary to take the defendant expert’s deposition. Not doing so effectively limits the expert’s subsequent testimony to the “four corners” of his or her report. If the expert’s report is shoddy or otherwise favorable to your case, it may be in your best interest to hold your cross for trial.
One of the potential pitfalls of federal court is that the admissibility of expert testimony is often subject to heightened challenges. If you have a case with a problematic causation issue and/or questionable damages, it may be best to opt for state court. There is a myriad of other factors one much consider in deciding whether to file in state or federal court, but this is an area I have seen come up repeatedly. Of course, if the parties lack diversity, there is no chance for federal court unless there is another independent claim to federal jurisdiction (e.g., a cause of action for an EMTALA claim).
Certain venues, both federal and state, are more or less accepting of negative attributes, and more favorable for Plaintiffs, which must be a part of case selection.
Acknowledging your client’s shortcomings and considering the pros and cons of potential jurisdictions and venue are essential aspects of good case selection.
- Poor Expert Selection
Cost control is always considered in case analysis, but being overly cheap on medical experts is not wise. Selecting an expert witness is arguably the most critical element in pursuing a medical malpractice case. Additionally, many attorneys make the mistake of not meeting the expert face-to-face (or virtually) before any testimony is undertaken. It is essential to know how the expert will present and be received. Venues may dictate how an expert is perceived. For example, a more rural setting may not appreciate an Ivy-league educated expert any more than an expert trained in local schools.
It is also necessary to vet the expert before retaining them. You should Google the experts because you never know what you will find. One must assume a jury will do the same thing even if they are instructed otherwise. You can also look at old depositions or ask other attorneys that have previously used the expert about their experiences with the expert. If you have a defense expert who normally only testifies for physicians agree to testify for you on a plaintiff’s case, there is a chance conflicting sworn testimony exists. The same can be said for plaintiffs’ experts testifying for a defendant. Regardless, if an expert is intellectually honest, they can testify for either side because they will have an opinion about a specific issue and hold true to that opinion in the face of cross-examination.
Once again, as with the client, one must consider the expert’s likeability. Is this someone a jury will like and respect? Whether we like it or not, being a zealous advocate for your client includes considering the realities of jurisdiction and venue when deciding on an expert (i.e., do you want someone with a very northern-sounding accent testifying in rural South Carolina.) The truth is it depends a lot on the expert. If you have a world authority, it probably wouldn’t matter, however, if you have a garden variety medical expert, it may be advantageous to look for someone more likely to appeal to your audience.
- Failure to Understand the Medicine
To succeed in a medical malpractice case, an attorney must understand the law and medicine. Medical issues can be incredibly complex, and attorneys that take on the challenge of prosecuting a medical malpractice case must understand the issues relevant to the events underlying the cause of action. This does not mean attorneys have to be thoroughly versed in all medical problems. Still, they must take the time to familiarize themselves with the particular aspect of medicine that is at issue in their case. Only by doing so will the attorney ask the right questions and/or effectively counter when questions are not answered completely or factually in depositions and/or trial. Having a constant medical resource present throughout litigation is a huge boon for attorneys that wish to focus primarily on the law as opposed to medicine. Though it is not always feasible to have an expert present during every phase of depositions, mediations, and trial, there are practical resources available in the form of litigation nurses or legal nurse consultants. Many law firms fail to utilize such resources outside of an initial case review.
- Failure to Recognize and Name All Defendants.
Medscape reports that nearly 22% of family physicians sued for malpractice claimed they were the only named party in the lawsuit.[ii] Although there is an undefinable number of cases where a second or third defendant was inappropriate, the high number of single-defendant lawsuits points to missed opportunities for recovery. Often additional parties beyond the physician share equal or greater responsibility for a patient’s damages and injuries. A thorough investigation can aid in eliminating missed opportunities for recovery.
Caps on damages are an added challenge to medical malpractice cases and, as such, and it is vital to understand the ever-evolving case law driving caps. Current working knowledge of caselaw provides attorneys with opportunities to “work-around” the caps to maximize recovery. This may include naming an individual employee in a charitable immunities case, proving gross negligence or reckless conduct, showing misrepresentation in the medical records, or establishing occurrences as established under Chastain v. AnMed Health Found., 388 S.C. 170, 172, 694 S.E.2d 541, 542 (2010). Another alternative avenue to remove the caps altogether is to consider if the “malpractice” could be defined as ministerial care or ordinary negligence. In South Carolina, our Supreme Court held in Dawkins v. Union Hospital Dist., 408 S.C. 171, 178, 758 S.E.2d 501, 504 (2014) that not every injury sustained by a patient in a hospital results from medical malpractice or requires expert testimony to establish a claim. Furthermore, if the patient only receives nonmedical, administrative, ministerial, or routine care, the case can be brought as an ordinary negligence case, which is not subject to the medical malpractice caps.
- Failure to Communicate with Medical Experts
Communication with medical experts is essential to understand the medicine and to see the facts from their point-of-view. Not taking time to communicate with experts upfront can lead to missed opportunities in discovery, depositions, and in trial. Experts can offer a unique perspective. Let’s face it; you are paying experts for their assistance, take advantage of it.
It is easy to get caught up in what you are saying and forget to pay attention to the audience. In a trial or mediation, a reasonable attorney will make every effort to “read the room” and get an idea of what approach will work best for his or her audience. Paying attention to the audience allows one to know the best way to approach delivering the information you want to convey. Sometimes, especially in trial, it is not enough for the jury to hear testimony. They must also understand and process it if you expect them to come to a favorable or predictable conclusion. Attorneys need to be able to recognize when their audience needs further explanation, or when additional testimony is needed to make a point clear.
Failure to Read the Audience
- Failure to Demonstrate
In a medical malpractice trial, attorneys are tasked with teaching complex medicine to the jury. It is important to remember that different people process information in different ways and at varying speeds. There are audible learners, visual learners, and kinesthetic. If you ask yourself what kinesthetic is, hopefully, you will benefit from this article. Kinesthetic learning involves the active manipulation of items. For example, physically giving someone a length of rope when teaching them to tie a knot. This is the least common approach taken by attorneys, and unfortunately, the failure to use it likely results in missed opportunities.
Good demonstratives that cater to all the learning styles are much more effective at persuading an audience than those that hit only one or two types of learners. The creation of demonstratives should be a collaborative effort involving all members of the litigation team, including experts. A team approach yields more creativity and acts as an active sounding board for how a jury may perceive the demonstrative.
On the flipside, creating a demonstrative early in litigation, can be effective at mediation to assist adjusters and Defense counsel with their understanding of the medicine, your client, and the case as a whole. Having a quality demonstrative as part of your mediation presentation sends a strong message to Defense counsel and the adjuster to advocate for an early resolution.
- Failure to Close
I use the phrase “failure to close,” as a light-hearted way of referring to the failure to stop talking (or close one’s mouth) after a point is adequately made. At the ABOTA: Masters in Trial 2020 CLE, the Honorable Joseph F. Anderson, Jr. shared that one of the most frequent complaints he hears from jurors is their frustration at attorneys who repeat the same points ad nauseum. When you make your point, move on to the next point. Continuing to beat a dead horse will not help your case and will likely turn jurors against you.
I’ve listed for you my top 8 reasons why good attorneys lose medical malpractice cases. Heightened chances of success can be obtained through better case selection, resource utilization, and communication. Medical malpractice cases are expensive, complex, and often protracted. However, even given all these challenges, medical malpractice cases can be immeasurably rewarding for clients, attorneys, and the pursuit of justice.
To view the other articles presented in the South Carolina Association for Justice Summer Bulletin click here.
[i] McDevitt, W. (2016, June 9). Dabbling: A Dangerous Practice Even for Accomplished Attorneys. Retrieved from law.com: https://www.law.com/thelegalintelligencer/almID/1202759657347/?slreturn=20200507172317
[ii] Martin, K. (2020, January 20). Medscape Family Physician Malpractice Report for 2019. https://www.medscape.com/slideshow/2019-malpractice-report-fm-6012446 (Martin, 2020)