Taking Back Control of
Healthcare Litigation
JOHN E. HALL, JR., Esq.
DAVID W. PROCTOR, Esq.
Hall Booth Smith, P.C.
Email: [email protected]
[email protected]
Phone: 404-954-5000 (Atlanta)
205-533-9650 (Birmingham)
Frequency
• There has been a decrease in the
frequency of claims.
Practitioner Frequency
National Practitioners Data Base
Nationwide Frequency Analysis
Claims Per 100 Physicians
2.5
2
1.5
1
2.3
2.1
2.2 2.2
2
2
1.9
1.8
1.9 1.9
2
1.8
1.7
1.6
1.5
1.3
1.2 1.2
1.1
1
0.5
0
Source: National Practitioners Data Bank public use file, March, 2015
1
0.9 0.9 0.9
Hospital Frequency
Aon HPL Benchmark Study
Hospital Frequency (per bed)
3.00%
2.50%
2.00%
1.50%
1.00%
0.50%
0.00%
Aon Hospital Professional
Liability and Physician Liability
2015 Benchmark Analysis
Freq Per Occupied Bed Equivalent
• Proportion of
Physicians
Facing a
Malpractice
Claim Annually,
According to
Specialty.
Source: Malpractice Risk According to Physician Specialty, Anupam B.
Jena, M.D., Ph.D., Seth Seabury, Ph.D., Darius Lakdawalla, Ph.D., and
Amitabh Chandra, Ph.D.
N Engl J Med 2011; 365:629-636A ugust 18, 2011 DOI:
10.1056/NEJMsa1012370
9% of MDs Accounted for 50% of Complaints
(6-year study period)
% of Complaints
100
80
60
40
20
0
30
40
50
60
70
80
% of Physicians
Source: Hickson GB, et al. JAMA 2002;287:1583-1587.
90
100
Reasons for decrease in
Frequency
• What are some of the reasons?
– Tort reform
– Recession
• But both of these are becoming less of a factor.
Third party litigation funding
Third-party litigation funding is funding by an
outside party of all or parts of a plaintiff’s
litigation costs in exchange for an agreed
share of any recovered proceeds.
Third party litigation funding
Michael Cannata, principal of Patent
Monetization Inc., has stated, “[a]s long as
the US [litigation] market continues to be
one of the world’s largest . . . and the
biggest pay-outs are available, this is going
to be attractive for [third-party] investment.”
Source: Jack Ellis, Patent Litigation as an Asset Class, INTELL. ASSET MGMT., Nov.–Dec.
2012, at 43, 46, 49 (internal quotation mark omitted). Patent Monetization Inc. is a private
third-party litigation-financing firm. Id. at 44.
Third party litigation funding
• Problems
– Results in more litigation.
– Cases are longer and more expensive for
parties.
– Encourages frivolous claims.
– Removes plaintiff’s incentive to settle
• plaintiffs have to recover enough to pay back the
financing.
Third party litigation funding
• Attempts to regulate
– Maine, Nebraska, and Ohio have passed laws
that attempt to put restrictions on third-party
litigation funders.
• But, only as to registration with the state, thus
making the business legitimate.
– Illinois, Kentucky, New York, and Texas have
all been unsuccessful in passing third-party
financing laws due to the resistance from
lobby groups.
Wealthy plaintiff firms
• Plaintiff firms are treating cases like lottery
– Revenue is high anyway;
– Tend to settle quickly;
– “No fees if we do not win your case.”
•
•
•
•
•
Morgan & Morgan - $100 to $500 million per year
Montlick & Assoc. - $10 to $25 million per year
Kenneth S. Nugent - $10 to $15 million per year
Bird Law Group - $1 to $5 million per year
The Cochran Firm - $1 to $5 million per year
Source: Glassdoor.com
Severity
• During the down turn in frequency we had an
increase in severity, or amount of verdict.
• Since 2013 there have been more than 80
cases in medical malpractice claims with
verdicts in excess of 20 million dollars.
• In all cases there have been more than 300
cases above 20 million dollars.
Birth, labor & delivery
Year
Case
Type
State
Verdict
2013
Reilly, Shannon v. St. Charles
Hospital/Catholic Health Services
Brain injury, CP
NY
$129,666,026
2013
Debes, Stephani v. St. Vincent's
Hospital
Brain injury, CP
NY
$103,075,618
2013
Nicholson v. Upsey vs Pottstown
Memorial, Touey, et al.
Brain injury
PA
$78,500,000
2013
Blunt, Sofia v. Haupt, et al
Brain injury
CA
$74,000,000
2015
Correa, Jizelle vs Dr. Geddis Abel v.
Bey, New York Hospital Medical Center
of Queens, et al.
Brain injury, CP, failure to
timely perform C-section
NY
$56,615, 069
2013
Crowell, Matthew v. St. Luke's
University Medical Center & Dr. Ronald
Kriner
Brain injury, CP
PA
$55,000,000
2013
Martinez, Enzo v. Johns Hopkins
Medical Center
Birth injury
MD
$55,000,000
2016
Ewing, Isaiah and First Midwest Bank
v. University of Chicago Hospital, et al.
Birth injury, HIE
IL
$53,000,000
2013
Wuth, Oliver v. LabCorp, Valley Medical
Center d/b/a Public District Hospital #1
and Dr. Harding
Wrongful birth
WA
$50,000,000
2016
Hotchkiss v. Wagner, Women's Fertility
& Health Center, et al.
Wrongful death
MD
$44,105,000
Surgical
Year
Case
Type
State
Verdict
2012
Chandler, George v. Memorial
Hospital of Jacksonville
Brain damage, paralysis,
negligent credentialing
FL
$178,000,000
2014
Stacey Galette v. Paul Byrne M.D., et
al.
Amputation following
salpingectomy
NY
$62,000,000
2016
Cruz, Llaulin v. St. Barnabas Medical
Center, Dr. Micahel Ihemaguba
Episiotomy with perforation
NY
$50,000,000
2015
Beloyianis, Edward et al. v. New York
Presbyterian and Dr. David Roye et al.
Paralysis and eventual
death after spinal surgery
NY
$45,600,000
2016
Tate, Andrea v. Hospital of the
University of Pennsylvania
Neurosurgical
complications
PA
$44,100,000
2013
Whyte, Dale v. Dr.'s Basil Mangra and
Thomas Rodenberg, Atlantic Surgery
Center
Chiropractic procedure
under anesthesia led to
coma and vegetative state
FL
$38,570,000
2015
Dubose - Kinney, Sonia v. North
Fulton Medical Center, et al.
Kidney surgery led to
paralysis and eventually
death
GA
$36,000,000
2013
Haughie, Laura vs Dr. Gregory Latshaw,
et al.
Hysterectomy led to nicked
bladder
FL
$30,000,000
2015
Rahm, Anna v. Kaiser Permanente
Amputation led to pelvic
damage
CA
$28,215,278
2013
McKnight, Charlene vs Catholic
Healthcare West
Spinal decompression,
paralysis
CA
$26,802,018
Failure to treat/misdiagnosis
Year
Case
Type
State
Verdict
2012
Sohl, Debora v. A. O. Fox Memorial
Hospital/Bassett Healthcare Network
Cardiac arrest
NY
$144,690,039
2016
Reynolds, Raymond v. Silver Cross
Hospital
Brain damage
IL
$50,000,000
2013
Myrick, Kody v. Dignity (Catholic Health
West), Dr. Sahuphan Hansa, et al
Stroke
CA
$38,614,587
2015
Larkin, Andrea v. Dr. Jehane Johnstone
(IM), et al.
Maternal stroke
MA
$35,400,000
2015
Pierre, Dens v. Bethesda Memorial
Hospital; Dr. Jeanne Uy Go; et al.
Infant stroke, brain damage
FL
$28,450,000
2015
Stern, Gary vs Dr.'s Todd Heller &
Steven Epstein
Organ damage
MD
$28,374,194
2015
Beauchamp, Carl v. Rhode Island
Hospital (LifeSpan)
Misdiagnosed brainstem
herniation
RI
$25,590,019
2014
Mayo, Ascaris v. Dr. Wyatt Jaffe
& PA Donald Gibson
Misdiagnosed infection led
to amputation
MN
$25,342,096
2013
Denton, Christopher vs Chu, Edward
Cardical arrest
VA
$25,000,000
2016
Schneider v. Griffin Hospital, et al.
Leg amputation
CN
$24,921,994
2015
Farley vs United States of
America (Veterans Association)
Stroke
NH
$21,400,000
Medication prescription/error
Year
Case
Type
State
Verdict
2012
Juno, Sharron vs Thomas Hospital,
Precyse Solutions, LLC, et al.
Wrongful death
NY
$140,000,000
2012
Martin, Jacqueline vs NYC Health
& Hospitals
Brain damage
PA
$120,000,000
2016
Green, Doris v. HealthSouth
Death
AL
$20,000,000
2015
Pressey, Naomi v. Children's
Hospital of Colorado
Brain damage
CO
$17,800,000
2016
Koon, Brian v. St, Louis University
Hospital and Dr. Walden
Negligent prescribing
MO
$17,600,000
2013
Briant, Mackenzie v. Seattle Children's
Hospital
Child paralysis
WA
$15,200,000
2012
Oden, Theresa vs Springhill
Wrongful death
AL
$15,000,000
Aging Services
Year
Case
Type
State
Verdict
2014
Durie, Andrea as next friend for Larry
Kolb v. MSHC Bonner Street Plaza,
L.L.C., d/b/a Bonner Street Plaza
Pressure/decubitus ulcers
TX
$31,040,261
2016
Hatfield, Cindyv. Allenbrooke Nursing
and Rehabilitation Center, LLC, et al.
Wrongful death
TN
$30,035,000
*$28,000,000 punitive*
2015
The Estate of Doris L. Cote v. Five Star
Quality Care Inc. et al.
Wrongful death
AZ
$19,210,000
Other medical
Year
Case
Type
State
Verdict
2014
Applewhite, Tiffany v. New York City
EMS
Brain damage secondary to
EMS delay
NY
$172,381,728
2013
Xu, Edward v. Tufts Medical Center, et
al.
Pediatric infection
MA
$24,430,000
2013
Brunson, Meyer, Helen v. Sierra
Health Plan of Nevada (United)
Hospital acquired hepatitis
NV
$24,000,000
2014
Buri, Carlos .s Mt. Sinai Med Ctr., et al.
Brain damage due to
respiratory mismgmntt
NY
$22,977,200
2015
Turner, Jeanette vs Mercy Medical
Center/Trinity et al.
Tracheal tube complication
leading to brain injury
IL
$22,100,000
2012
Slevin, Stephen vs Dona Ana County
Improper inmate care
NM
$22,000,000
2012
Neel, Mark vs Gairhan, Hickey, et al
Post surgical infection,
cardiac arrest and death
TX
$20,000,000
2016
Caden Clark, v. Columbia Medical
Center of Arlington Subsidiary, L.P. et al.
Tracheal tube complication
leading to death
TX
$19,693,257
2013
Merritt, Sheriod vs Grady
Hospital/Fulton DeKalb
Tracheal tube complication
leading to brain damage
GA
$17,500,000
2012
E.L. (Eileen Lux) v. Julian Metter
Improper psychological
treatment
PA
$16,500,000
2013
Wade, Cody vs Dr. Susan Lowry,
Martin Medical Center, HealthSouth
Tracheal tube complication
caused brain injury
TN
$15,261,070
Severity
• Reasons for this increase in severe or
aberration verdicts:
– Case selection;
– View of corporate medicine;
• bricks and mortar liability.
Bricks and Mortar Liability
• Hospitals named in lawsuits to
attempt to create an impersonal
defendant and enterprise liability.
Severity
• Reasons for this increase in severe or
aberration verdicts:
– New proof models and strategies by plaintiffs:
• Reptile Theory;
• Life care planners.
Reptile Theory
• The Reptile Theory is a trial strategy program.
• It is marketed to plaintiffs’ attorneys in seminars across
the nation.
• Although Reptile Theory is 6 years old, it continues to be
widely used by the plaintiffs’ bar.
• It gives plaintiffs’ attorneys (who do not try many cases)
a road map for trial (which they fear!)
Reptile Theory
• The Reptile likes safety rules that:
–
–
–
–
Prevent danger;
Protect in a wide variety of situations;
Clear and practical;
Ridiculous to reject.
• Emphasize “Bad Med Points” (jury can identify):
– long waits, medical bureaucracy, treated like a
number, no attention to case between visits, too
rushed, does not listen, dismisses client’s research
online, controlled by insurance companies.
Reptile Theory
• Primary Goal in Trial: To show the immediate danger of
the kind of thing the defendant did—and how fair
compensation can diminish that danger within the
community.
• Show “immediate danger.”
• Immediate danger is important because tort-reform
dangers are mid-to-long term, and the Reptile gives full
priority to immediate and short-term.
Life Care Planners
• Origin
• Development
• Problem
Severity
• Other reasons for increase in severe or
aberrational verdicts:
– Decease in skill and experience of the
defense bar;
– Third party bill review;
– Rate pressure due to soft market;
– Lack of trials;
– Lack of willingness to train.
Paradigm Shift for the Defense
• Awareness that there is an enemy.
• Awareness and avoidance of complacency.
• Awareness that things change.
• Awareness that we have the burden to win
(proof).
Changing strategies in defense of cases
• Recognizing trends from plaintiffs’ attorneys:
• Reptile theory;
• Evidence of substantial future costs of care (life care
plan);
• Attempts to avoid caps on damages;
• Request for non-economic damages;
• Third party litigation funding;
• Wealthy plaintiff firms treat cases as lottery;
• Hospitals – brick and mortar liability.
Evidence & Damages
• Evidence of substantial future costs of care
• Exaggerated Life care plans
• Attempts to avoid caps on damages
• EMTALA suits
• Gross negligence
• Request for non-economic damages
• Pain and suffering
• Punitive damages
Changing strategies in defense of
cases
A. Assume the Burden of Setting the Value at the
Outset
B. Anchoring the Value
C. Developing the Value
1.
2.
3.
What was plaintiff’s pre-event status/ pre-existing condition?
Has plaintiff been taken care of well / managed by real providers?
What are the real costs of care since the event until the present?
– Actual Costs v. Billed.
4.
5.
6.
Show what collateral sources have been (trial / settlement).
Set the real value of the case early.
Strategies for real future costs and supporting the value.
Damages
• Damages are the real driver in the resolution of most
malpractice cases.
• We are seeing an increase not only in “Mega” jury
verdicts, but in the average amount of jury verdicts in
malpractice cases as a whole.
• Exaggerated damages are killing the system – Plaintiffs
provide inflated numbers.
• Economic damages are being wildly exaggerated.
Damages
• Tradition has been that the plaintiff develops the
damages, and defense is not involved in those early
stages of development.
• Instead, defense is focused on challenging liability
through standard of care or causation.
• Common wisdom is if we spend too much time on
damages, we undermine the standard of care or
causation defenses.
Assuming the burden of setting value
at the outset
• Do not wait for plaintiff.
• Defense must set the value of the case from the
beginning, regardless of liability.
• Do this by propounding the right discovery, obtaining the
right experts, and identifying the right areas where value
will be challenged.
• Must do this within the first 90 days of litigation.
Anchoring the value
Jury studies show that when defendants
produced no testimony contesting plaintiff’s
damage estimates, jurors felt they had no
choice but to rely on the plaintiff’s damages
evidence.
Additional Findings
• Anchoring effects persists even when anchors are extreme.
• One study tested demands ranging from $100 to $1 billion. Both the
low and high demands produced anchoring effects.
• Within 31 actual audiotaped jury deliberations, there were 1,624
references to the attorney’s recommendations – mentioned by 86%
of the jurors.
• Anchors are strongest when supported by logic: (e.g., X times the
amount of medicals; X amount for each year of defendant’s poor
conduct).
• Even jurors who criticized the plaintiff anchors as too high or
outrageous use the number as a starting point (e.g., “I’ll give them
half.”).
• Some attorneys worry juries will interpret an alternative response as
a concession of liability at worst, or a damages floor at best.
Developing the value
1) What was plaintiff’s Pre-event status/Pre-existing condition?
2) Has plaintiff been taken care of well / Managed by real
providers?
3) What are the real costs since the event until the present Actual costs vs. Billed?
4) Show what collateral sources have been (trial/settlement).
5) Set the real value of the case early.
6) Strategies for real future costs and supporting value
a)
b)
c)
d)
Use ACA to show value;
Special Needs Trust;
Use annuity testimony to show value of money;
Undermine the plaintiff proof by showing exaggerated future
costs of care.
Medical Malpractice Research Summary
• By the age of 65, 75-99% of all physicians will have faced a
medical malpractice claim.
• 1-6%+ hospital patients injured due to negligence.
• ~2% of all patients injured by negligence sue.
• ~5-7 x more patients sue without valid claims.
• Non-$$ factors motivate patients to sue.
• Some MDs/units attract more suits.
• High risk today = high risk tomorrow.
• Unsolicited complaints predict claims.
RISKS UNIQUE TO HOSPITALS
Risks Unique to Hospitals
• Release of Records/
HIPAA
• Employment Actions
• Policy Failures
• Spoliation and Legacy
Systems
• Inadequate Staffing
• Cybersecurity
• Credentialing Claims/
HCQIA
• Informed Consent
• EMTALA Violations
• Premises Liability
• Social Media
Release of Records
• WRONGFUL RELEASE OF MEDICAL
RECORDS and CYBERSECURITY
If records are compromised, do you have to
notify the patients?
It depends.
Spoliation
• Spoliation is an attempt by a party to
suppress or destroy material evidence
favorable to the party’s adversary.
– Russell v. East Alabama Health Care Authority, 192 So. 3d 1150,
1176 (Ala. Civ. App. 2005)
• If a jury finds a party guilty of spoliation, it is
authorized to presume or infer that the
missing evidence reflected unfavorably on
the spoliating party’s interests.
– Vesta Fire Ins. Corporation v. Milam & Co. Const. Inc., 901 So.
2d 84, 93 (Ala. 2004).
Cybersecurity
Ten things that reduce risk and increase
security:
1. Train employees/create culture of cyber security
2. Keep current with security software updates
(patches)
3. Physical security
4. Procedures & processes
5. Back-up data protection
6. Insurance
7. Mobility
8. Informal communications
9. Social Media
10. Web Surfing
Breach Notification
•
No bright line. Not every “breach” requires
notification. Specific situations where a specific
breach incident is so inconsequential it does not
require notification. Providing notification in such
cases may cause the individual unnecessary anxiety
or even eventual apathy if notifications of these
types of incidents are sent routinely.
•
Since the presumption is that notification is required,
if one chooses not to notify, then one needs to have
a documented risk assessment that justifies decision
not to notify.
Informed Consent
• The test under Alabama law to determine
whether a physician has disclosed all
material risks to a patient is “a professional
one,” i.e., has the physician “disclosed all
the risks which a medical doctor practicing
in the same field and in the same
community would have disclosed.”
– Giles v. Brookwood Health Servs. Inc., 5 So. 3d 533,
554 (Ala. 2008).
EMTALA Violations
• Emergency Medical Treatment and Active Labor
Act – 42 U.S.C.A. § 1395dd
– (a) If the hospital has an emergency department…the hospital
must provide appropriate medical screening examination…to
determine whether or not an emergency medical condition
exists.
– (b) treatment may be required to stabilize the medical
condition or transfer the patient to another medical facility.
– (d)(1) A hospital that negligently violates…is subject to a civil
money penalty of not more than $50,000.
– (d)(2) Any individual who suffers personal harm as a result of
hospital’s violation…may, in a civil action…obtain those
damages available for personal injury under the law of the
State.
Employment Actions
• Be on the lookout for:
• Employee Privacy Issues
– Claims involving same are on the rise
• Can You be Liable for Your Staffing Companies’
Mishaps?
– Recent Developments Interpreting DOL’s 2016
Pronouncements
• Up to the Minute Updates on Congress’s Most
Recent 2016 Changes to our Wage and Hour
Laws
Policy Failures
• Hospital Policies = Less is better.
• When necessary avoid utopian gold standard
• Include language that policies are simply
guidelines and not intended as the “standard
of care.”
• When possible have policies reviewed by
counsel to identify problem areas before they
come out in litigation.
• Identify and address problem areas as soon
as are noticed.
Inadequate Staffing
• With shortages of nurses and other healthcare
professionals becoming an increasingly chronic problem,
optimizing staff and workload is imperative.
• Healthcare providers that have adopted predictive
analytics and advanced labor management strategies
have realized various positive outcomes that spread
throughout the entire hospital.
• Predictive Analytics and other staffing technology can be
used to combat shortages and prevent patient backlog in
ED’s and other branches of the facility.
Credentialing Claims/HCQIA
• The immunity provisions of HCQIA are easily
attainable by a credentialing entity, assuming it acts
reasonably in its peer review process.
• The statutory requirements for immunity are clear
and often consistent with a hospital's own internal
bylaws.
• HCQIA creates a rebuttable presumption in favor of
immunity, which allows the issue to be resolved
before trial and creates a substantial evidentiary
burden for parties attempting to avoid immunity.
Social Media Risks
• Content can be located through location services
and identification of location by the content
generator.
• Posts often identify the employees(s), the facility,
and even the patient.
• Content posted by facility employees on social
media is likely to be public and searchable.
• Well-intentioned or seemingly harmless content
posted to social media can be a HIPAA violation.
• Social media content posted by a facility employee
can be the basis for an immediate jeopardy – or
worse.
Identification of Facility
Identification of Patient and HIPAA Violations
26,400
thousand
“Likes”
HIPAA Violations
March 4, 2016
Staff
Lawyers and Social Media
• [I]t should now be a matter of professional competence for attorneys to
take the time to investigate social networking sites.
• Griffin v. Maryland (Maryland Court of Special
Appeals, May 2010)
• It is a lawyer’s duty to Google as part of due diligence.
• Munster v. Groce (Ind. App. 2005)
• It is a lawyer’s duty to use Internet resources as part of due diligence, not
to use methods that have gone “the way of the horse and buggy and the
eight track stereo.”
• Dubois v. Butler (Fl. App. 2005)
• Lawyer’s need to perform Internet research as part of the diligence, to
uncover information the court found “reasonably ascertainable.”
• Weatherly v. Optimum Asset Management (La. App.
2005)
Lawyers and Social Media
Zimmerman v. Weis Markets, Inc. (2011)
• Court compelled production of plaintiff’s Facebook
user name and password
• Publically available information provided good cause
basis
Lester v. Allied Concrete Company (2011)
• Attorney and client sanctioned $722,000 by Virginia
State Court
• Told client to “clean up” his Facebook with
incriminating photos
• Spoliation conduct also likely influenced Court’s
decision to reduce Jury verdict of $10.6 million
Monitoring Tools
ROLE OF ELECTRONIC
RECORDS
Role of electronic records
• EHRs are digital (computerized) versions of patients' paper charts.
• EHRs are real-time, patient-centered records.
• EHRs can:
– Contain information about a patient's medical history, diagnoses,
medications, immunization dates, allergies, radiology images, and lab
and test results;
– Offer access to evidence-based tools that providers can use in making
decisions about a patient's care;
– Automate and streamline providers' workflow;
– Increase organization and accuracy of patient information;
– Support key market changes in payer requirements and consumer
expectations.
• One of the key features of an EHR is that it can be created,
managed, and consulted by authorized providers and staff across
more than one health care organization. A single EHR can bring
together information from current and past doctors, emergency
facilities, school and workplace clinics, pharmacies, laboratories,
and medical imaging facilities.
Source: HealthIT.gov
Liability
• Providers are responsible for information to which
they have reasonable access—and there is
increased access to e-health data from outside the
practice that is accessed from the practice EHR or
website or through Health Information Exchanges,
e.g., hospital charts, consultants’ reports, lab results
and radiology reports and images, and community
medication histories.
• If patient injury results from a failure to access or
make use of available patient information, the
physician may be held liable.
Liability
• Electronic discovery:
− Lawyers may request printed copies of the EHR
and also copies in native format, which shows how
the data was used (Were CDS alerts and prompts
followed or overridden?).
− They will also request the metadata, which
includes logon and logoff times, what was
reviewed and for how long, what changes or
additions were made, and when the changes were
made.
− Smartphone and e-mail records are also
discoverable. All provider interactions with the
EHR are time-tracked and discoverable.
Examples
• How long did you spend with the patient?
– Really, because according to the metadata you
began your interaction at 13:32:33 and ended at
13:35:12.
• When did you make the entry?
– Really, because the metadata indicates that you
made an entry that day and then on then 2 weeks
after the patient died you changed the record and
here is what was changed.
• The computer may become a barrier between the
provider and the patient.
• EHRs are certified for compliance with Meaningful Use
requirements, e.g., computerized provider order entry
(CPOE), e-prescribing, Clinical Decision Support (CDS),
and patient connectivity through Patient Portals.
• Auto-population of fields in H&P.
• Copy & paste H&P – outdated, irrelevant, incorrect
information gets copied.
Other Liability
•
•
•
•
•
•
•
HIPAA Breach
Discovery Abuse (failure to secure)
Medical Identity Theft
Stolen / Loaned Passwords (vindictive use)
Practicing Medicine Without a License
Punitive Damages (altered records)
Spoliation (lost records)
TRYING MORE CASES
Should We Try More Cases: Six Myths of
Malpractice Trials and Why More Cases
Should Be Tried
Myth #1: Jury Sympathy
• Myth:
– “Juries are sympathetic to plaintiffs to detriment of defendants.”
• Facts:
– Verdict for Plaintiff in only 27% of medical malpractice cases.
– Physicians win:
• 80-90% of jury trials with weak evidence of medical
negligence;
• 70% of jury trials with no strong evidence of medical
negligence/non-negligence;
• 50% of jury trials with strong evidence of medical negligence.
– Jurors are skeptical of personal injury claims.
Myth #2: Jury Comprehension
• Myth:
– “Juries do not understand the science, so they
blindly follow plaintiffs' experts.”
• Facts:
– Targin Study: Juries can draw medical
conclusions consistent with the judgment of
medical doctors.
– Arizona Jury Study Project: Jurors are vigorous in
deliberations.
– Schuman Study: Jurors did not display “white
coat syndrome.”
Myth #3: Comparative Fault
• Myth:
– “Must attack co-defendants in order to keep
liability down.”
• Facts:
– Verdicts are higher with respect to all parties
when defendants fight.
– Will almost guarantee plaintiff verdict.
– Working together generally produces a
favorable outcome for all.
Myth #4: Unpredictable Awards
• Myth:
– “Jury awards are unpredictable.”
• Fact:
– Verdicts are very consistent with Judge’s
opinions.
– Damages tend to correlate with the severity of
the injury.
– Research suggests that defense attorneys
predict payouts better than plaintiff’s counsel
or medical experts.
Myth #5: Costs
• Myth:
– “Pursuing a Trial for a Claim Costs More than Settling It.”
• Fact:
Analysis of Cost of Close Claims, Settlement Versus Verdict, Data from P.G. Peters, Jr., Twenty Years of Evidence on the Outcomes of
Malpractice Claims, 352 (2008); A.E. Carroll, P.D. Parikh, & J.L. Buddenbaum, The Impact of Defense Expenses in Medical Malpractice
Claims, 40 J. of Law, Med., & Ethics 135, 137–38 (2012).
Myth #6: Verdicts > Settlements
• Myth:
– “Plaintiffs’ verdicts result in bigger awards than
settlements.”
• Fact:
– Big blockbuster awards are rare.
– Farber & White Study: Plaintiffs’ verdicts were
similar to settlement amounts for cases with
similar characteristics.
– Florida Study: of 801 medical malpractice claims
with payments over $1 million, 747 were resolved
before juries issued verdicts.
ANSWER: YES…WE
SHOULD TRY MORE CASES
• Common myths surrounding trial
are not supported by data.
• Trials should not be avoided
because of unsound fears.
ROLE OF SPECIALTY COUNSEL
National Counsel Role
• With a National Team, the focus is on a “team
approach” to the defense of catastrophic injury
cases.
• The program is designed to assure that these
dangerous cases have the appropriate resources
dedicated to them.
National Counsel
– Will review the litigation file created by the local
counsel, as well as the pertinent medical records,
depositions, reports and other file materials.
– Can then assist in the retention of experts,
recommending additional areas of specialization or
particular experts in germane fields.
– We are specialists at dealing with plaintiff theories
such as Reptile Theory.
– Will assist in the evaluation of potential for liability and
estimation of probable damages.
– Will devise strategies for successful and timely
resolution of the litigation.
National Counsel Model
• Involves:
– Aggressive state of the art defense on liability.
– Determined identification of causation
defenses.
– Innovative approach to damages that helps
win the cases outright or minimize recovery.
– Sending message to plaintiffs concerning the
determination in defense strategy.