Defense of Medical Malpractice Cases: Case Evaluation Outline and Guide
By: Robert J. Lanney, Sulloway & Hollis, P.L.L.C.
In evaluating claims or lawsuits against medical care providers, multiple factors must be considered. In general terms, appropriate evaluation requires accurate assessment of the patient’s injuries, the demeanor of the medical care provider(s) and patient/plaintiff, the medical evidence and literature supporting the care provided, and an analysis of causation and damages. Evaluating medical malpractice cases also requires an objective assessment of the facts and the “story” the patient will tell as well as the potential for adverse publicity against the medical care provider(s). The following are general factors to be considered in defending and evaluating a medical malpractice claim and in determining the reasonable settlement value of the claim and the risk exposure of proceeding to jury trial.
- Identify and research the plaintiff. Utilize social media. Consider personal factors and the “story” the plaintiff will tell about the care provided. Assess the degree of jury sympathy likely to impact upon deliberations.
- Identify your defendant health care provider. Was the provider employed by a hospital such that he or she does not need to be named individually and can be dismissed from the case by agreement of the parties to potentially avoid National Practitioner Data Bank reporting? Identify all insurance coverage including primary and excess coverage available to the defendant(s). Obtain information regarding insurance coverage for any co-defendant(s).
- Preserve evidence, particularly the entire electronic medical record, pathology specimens, laboratory reports, imaging studies and handwritten notes. Prepare an appropriate litigation hold letter to all involved and affiliated care providers.
- Identify plaintiff’s counsel. Investigate opposing counsel’s reputation, experience and willingness to try or settle cases. Perform the same analysis for any co-defendant’s counsel. Evaluate what impact the quality of opposing counsel will have on the outcome of the case.
II. VENUE AND JURISDICTION
- Was the case filed in the correct jurisdiction and venue? If not, file an appropriate motion.
- Analyze the demographics and makeup of jurors in the appropriate venue and what impact these factors will have on the outcome of the case.
- Determine whether removal to federal court is appropriate, available and advantageous.
- Provide your client and insurance carrier with information regarding the judge who is likely to preside over discovery and trial.
III. PRELIMINARY MOTIONS
- Determine the availability of early dispositive motions.
- Are any counts within the lawsuit subject to a motion to dismiss?
- Are any counts within the lawsuit subject to a motion for summary judgment?
- Are counterclaims or third party actions available, indicated and/or recommended? Provide an analysis regarding these options.
- Conduct discussions among defense counsel, the client and insurance carrier (hereinafter also referred to as the “Defense Team”) about the most appropriate strategic use of early dispositive motions.
IV. ASSESSMENT OF LIABILITY – STANDARD OF CARE
- Interview the health care providers involved in the case with a critical eye toward identifying risk exposure and the merits of the plaintiff’s claims as articulated in the lawsuit or as identified after thorough review of the medical records by counsel and experts and through client interviews.
- Obtain appropriate medical literature on the standard of care issues involved in the case with particular focus on any guidelines established by the various American colleges.
- Obtain any policies or procedures from the institution or medical practice where the care was provided which are relevant to the care at issue to determine compliance or noncompliance and the impact on the defensibility of the case.
- Develop theories of defense; provide and discuss with the client and insurance carrier preliminary and ongoing liability assessment; identify all substantive legal and factual defenses to plaintiff’s claims and whether any such defenses are likely to defeat those claims.
- Determine whether comparative fault is available (rare in medical malpractice actions).
- Evaluate the risk exposure to any co-defendants and advise the client and insurance carrier about the application of the rules of joint and several liability.
- Provide an analysis of the percentage of fault that is likely to be assessed against each party and the basis for this estimate. Communications among defense counsel, the client and insurance carrier regarding this assessment is essential.
- Evaluate the plaintiff’s theory of negligence.
- Determine if there are any nonparty tortfeasors at fault and whether such nonparties (so called “empty chair defendants”) can be included on the jury verdict form allowing the jury to place a percentage of fault on the nonparty, thereby reducing the amount of damages recoverable against named parties at fault. Formulate a strategic plan accordingly.
- Retain experts (see Section VII).
- Conduct strategic discussions among defense counsel, the client and insurance carrier on issues regarding standard of care.
V. ASSESSMENT OF LIABILITY – CAUSATION
- Evaluate the plaintiff’s theory of causation.
- Obtain appropriate medical literature to challenge the plaintiff’s theory of causation.
- Identify the defense theory of causation.
- Obtain appropriate medical literature to support the defense theory of causation.
- Determine if there are multiple causes of the alleged damages and if so, identify each contributing cause to the alleged damage sustained.
- Retain experts (see Section VII).
- Conduct strategic discussions among defense counsel, the client and insurance carrier on issues regarding causation.
- Utilize interrogatories and request for production of documents to obtain the plaintiff’s complete medical records from both before and after the care at issue.
- Obtain payroll, wage and tax information to verify lost wage/lost earning capacity claims.
- Investigate plaintiff on social media consistent with applicable rules of ethics.
- Secure all evidence from your client relevant to the defense of the case, particularly all medical records (handwritten and electronic), office notes, laboratory reports, calendars, imaging studies, pathology and any personal notes maintained by the health care providers/defendants.
- Determine whether a site inspection is necessary and would be helpful to the defense of the case.
- Determine whether any independent witness statements are indicated and obtain as necessary.
- If state law permits, determine whether ex parte communication with nonparty treating physicians should be conducted. (Several states prohibit such ex parte communications.)
- Determine whether there is any additional physical evidence which needs to be secured such as surgical instruments, catheters, allegedly defective medical products, etc.
- Determine what witnesses need to be deposed and evaluate the impact of their deposition testimony on the defensibility of the case.
- Conduct communications among defense counsel, the client and insurance carrier analyzing the results of discovery and the impact of discovery on the settlement value or the decision to proceed to trial.
VII. EXPERT WITNESSES
- Retain well-qualified experts to address standard of care, causation and damages. (This will almost always require retention of experts in multiple disciplines.)
- Determine which disciplines are needed to defend the case on standard of care, causation and damages and discuss among the Defense Team.
- Analyze the appropriateness of retaining local experts from within your jurisdiction as well as recognized experts from leading academic medical centers. (The extent of damages will frequently determine the number of experts required as well as the necessity for retaining nationally recognized academic experts.)
- In cases involving rare medical injuries or diseases, identify the experts in those fields (medical literature may be helpful) and seek to retain the “recognized” experts in the particular discipline at issue.
- Interview all defense experts, report to the client and insurance carrier regarding the opinions of those experts and discuss with the defense team the impact the expert opinions will have on the defensibility of the case on standard of care, causation and damages. (Always consider the timing of sharing expert opinions on standard of care with your medical care provider client so as not to undermine his/her confidence prior to a deposition, but always prepare the client on the standard of care, causation and damage issues identified by your experts.)
- Upon disclosure of plaintiff’s experts, research their theories of liability (standard of care, causation and damages) and the ability to attack those theories with medical literature. Investigate their background, training and medical legal witness testimonial experience. Obtain prior deposition transcripts, particularly on any testimony relevant to the same issues in the case at hand. (IDEX search.) Share all information with the Defense Team.
- Determine the availability of Daubert challenges to the plaintiff’s experts.
- Evaluate the impact plaintiff’s experts will have on the reasonable settlement value of the case or decision to proceed to trial.
- Determine which experts need to be deposed.
- Assess all damages including noneconomic, personal injury, permanency and disability.
- Assess causal relationship of alleged negligence and causation to damages.
- Develop a plan for damage defenses and expected use of damage experts.
- Develop a plan for reduction of economic damages.
- Identify potential indemnity, contribution and collateral sources to limit damages.
- Calculate and verify current and future medical special damages, lost wages, future lost wages and miscellaneous damages.
- Determine if there are any statutory caps or other tort reform provisions available to limit the exposure on damages.
- Determine if there are any liens (e.g. Medicare/Medicaid, Worker’s Compensation, ERISA or other enforceable liens), subrogation interests or assignments. Engage lien and subrogation holders in settlement discussions with the assistance of plaintiff’s counsel. Evaluate how any liens or subrogation interests will impact settlement negotiations and have a plan of action to address this issue.
- Assess the availability of punitive damages under state or federal law and advise the client and insurance carrier accordingly.
- Determine the reasonable amount a jury is likely to award for damages if liability is established.
- Conduct strategic discussions with the Defense Team on issues regarding damages.
IX. EARLY DISPOSITION STRATEGY
- Provide the client and insurance carrier with an assessment of whether the case should be settled prior to significant discovery and expert expense. Why or why not? Discuss the availability of ADR and mediation. Conduct strategic discussions with the Defense Team on these issues.
- Provide the client and insurance carrier with an assessment of the judge and jurisdiction.
- Provide the client and insurance carrier with an analysis of the strengths and weaknesses of the case.
- Provide the client and insurance carrier with an analysis of the reasonable settlement value of the claim early in the litigation process and update the analysis as significant events unfold.
- Provide the client and insurance carrier with the reasonable verdict range for the insured defendant as well as the verdict range for other defendants. Once again, provide this analysis early in the litigation process and update periodically.
- Provide an early analysis of the estimated chance of a verdict in favor of the insured defendant and update periodically.
- Provide an early estimated percentage chance of verdict in favor of the co-defendants and update periodically.
- Consider settlement options such as direct negotiations, mediation or arbitration.
- Determine whether an offer of judgment is available and whether it would be effective.
- Conduct strategic discussions among defense counsel, the client and insurance carrier regarding all of defense counsel’s evaluations and formulate a plan of action.
XI. FEES AND EXPENSES
- Determine the projected cost of the defense of the claim, including attorney fees, expert fees, deposition costs, travel and other miscellaneous expenses for pretrial discovery, trial preparation and trial.
- Develop initial and updated budgets on projected litigation costs.
- Determine with the Defense Team whether cost of defense is a consideration in evaluation of settlement and integrate projected cost into overall assessment of reasonable settlement value.
Throughout the entire process of defending and evaluating a medical malpractice case, it is essential to have objective, candid and frequent discussions with the Defense Team including defense counsel, the medical care provider(s), the insurance claims professional and any risk management professionals involved in the matter.Reliance upon the opinions of well-qualified experts is also imperative.Finally, providing emotional support for the client is extremely important to the success of the entire process.All of these factors will help to successfully defend the claim, properly evaluate the reasonable settlement value of the claim and determine whether the case should be taken to trial.