CBA Record May-June 2020

CBANEWS P anelists representing the judi- ciary and plaintiffs’ and defense attorneys discussed key aspects Litigating High Stakes Medical Malpractice Cases By Caryn R. Suder, CBA Editorial Board tion. Experts often include life care plan- ners and economists, in addition to those on standard of care and causation. If the attorneys have difficulty finding experts, they may try to resolve the case early.

be able to get to the jury on the apparent agency issue, hoping the hospital, with much larger policy limits, will be held liable. To do this, plaintiffs’ attorneys must show that the hospital knowingly created the appearance of an agency relationship with the physician (often called a “hold- ing out”), and that the plaintiff relied on this. Plaintiffs’ attorneys may request an institution’s printed advertising materials, examine social media posts, and depose hospitals’ marketing and public relations staff to show the holding out. Defense counsel may try to win summary judgment by showing that an institution’s consent forms that a plaintiff signed labeled practi- tioners as independent contractors. Judges may not often grant those motions, but defense attorneys file them regularly. Regarding expert witness depositions, attorneys on both sides stressed the impor- tance of thoroughly preparing one’s own expert and discovering as much as possible about the opposing side’s expert before deposition. The attorneys then use their own experts and clients to help them devise questions for the opposing side. Some panelists try to get opposing experts to agree to general principles in depositions, but refrain from using favorable medical literature at that stage so the expert does not have time before trial to determine how to rebut the literature. The judge on the panel addressed courts’ views on motions to compel and motions for sanctions related to discovery issues. Besides taking up a tremendous amount of judges’ time, such motions put judges at a disadvantage, because they know far fewer important details about the case than the attorneys do. He noted that experienced attorneys generally know how to work

involved in litigating complex medical malpractice cases in a recent CLE ses- sion. The wide-ranging discussion cov- ered evaluation of the potential case and injury; expert witnesses; discovery; audit trails; use of apparent agency; motion practice; jury selection; and closing arguments. In evaluating potential cases, plaintiffs’ attorneys agreed that because of the costs involved – often about $150,000 to pursue the case and up to another $200,000 to try it – they look for a permanent, cata- strophic injury, such as death, quadriplegia, paraplegia, amputation, brain injury, or blindness. Another consideration is how well the family presents to a jury. A good case on standard of care and causation is essential. They also look for the deep pocket, which often means suing employed nurses or others on an apparent agency theory to access a hospital’s insurance coverage. Counsel stressed the importance of identifying defendants early. This can be particularly critical where the Federal Tort Claims Act applies (when federal employees are accused of causing injury through negligence while acting in the scope of their employment), as that act has a separate statute of limitations and no statute of repose. Defense attorneys, who cannot choose their cases, first evaluate the injury, which is almost always catastrophic. Next, they look at their client’s credibility and belief in his or her own case; they want a jury to like the client and believe the client’s story. Expert witnesses must be evaluated to assess how they would hold up under cross examina-

Panelists next addressed the pros and cons of naming respondents in discovery. One advantage for plaintiffs’ attorneys is that they can take potential defendants’ depositions early on, when their attorneys might not yet have the experts and other information to adequately prepare them. However, defense attorneys can avoid this by moving to convert their own clients to defendants. Plaintiffs’ attorneys can also discover more about what happened sooner, before memories fade, and may learn of others whom they should name as parties. And, plaintiff’s attorneys do not have to pay treating physicians who give depositions as respondents in discovery for their deposition time. Audit trails – electronic records of medi- cal records, including who accessed them and when, and whether any additions or changes were made – figure prominently in medical malpractice litigation. They can be complex, and expert help is often needed to interpret them. Often, hospitals hire companies to keep these audit trails rather than doing it themselves. These may be foreign companies, which may not always cooperate when asked to produce these trails. Panelists stressed the importance of defendants having good relationships with the audit trail providers they hire. Plaintiffs’ counsel then discussed the use of apparent agency claims. Often, defendant physicians have insurance policy limits of only $1 million to $2 million. Plaintiff’s attorneys who want their clients to be fully compensated therefore need to

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