Handling Medical Negligence Claims
I. EVALUATE THE MEDICAL NEGLIGENCE CASE
A. Assessing the Case: How to Conduct the Initial Evaluation.
Medical negligence cases are costly and difficult undertakings. Generally, you will be facing capable defense counsel, top notch defense experts, intelligent and articulate defendants, vast defense resources, and a hardened and skeptical insurer that will be looking for any weaknesses in your case. Those factors, along with the fact that the likely issues of the litigation will concern topics that the defendants and their experts know more about than you, can make these cases challenging.
Nevertheless, incidents of malpractice with disastrous consequences continue at an alarming rate. Consequently, there is an obvious need for capable plaintiff’s counsel to represent patients injured by the negligence of their healthcare providers. Such work can be personally and professionally fulfilling.
Because of the difficulties in pursuing such cases, an initial evaluation is essential in determining how to best allocate your limited time and resources. Plaintiff’s counsel in medical negligence cases routinely reject the vast majority of such potential claims. In order to avoid costly mistakes in case screening, it is important to look for all the potential weaknesses in the case at the outset. Plaintiff’s counsel should put himself or herself in the position of the defense lawyer who would be defending the potential claim and look for those weaknesses that would result in a defense verdict or a minimal recovery. Those might include:
1. Damages:
What permanent injuries resulted? What are the likely future costs? What is the client’s prognosis? What are the special and general damages?
If the damages attributable to the defendants’ negligence are not permanent and catastrophic, it may not be in the client’s or attorney’s best interest to pursue such a claim.
2. Standard of Care:
Is there clear evidence that the defendant(s) failed to act in accordance with the standard and recommended practices and procedures of his/her profession? (RSA:508:13)
3. Causation:
Can it be proven that the injuries the client has suffered “would not otherwise have occurred?” (RSA:507-E:(2)(I)).
4. Experts:
Are your experts able to support both the claims of negligence and causation in a clearly understandable manner?
5. The Plaintiff as a Witness and Client:
Are the client’s expectations reasonable? What are the client’s motives in wanting to pursue the case? Will the client make a credible and sympathetic witness? Is the client someone who you will feel comfortable working with and who is likely to respect your advice?
6. Comparative Fault:
What potential claims will the defense make to suggest that the plaintiff is responsible for his or her own losses and injuries?
7. Costs:
What are the expected costs of obtaining the medical records, expert reviews, damage assessments and other litigation costs?
B. The Initial Client Conference.
Often there is not an initial client conference, because it can be determined in the first telephone call (or other means of contact) that the potential claim is lacking an element of proof, adequate damages or some other essential aspect of a successful medical negligence claim.
Those inquiries that result in an initial conference are important in helping an attorney evaluate the claim. In advance of the initial conference, plaintiff’s counsel should have a basic grasp of the medicine involved and the potential areas of liability. That may require some review of the pertinent medical literature so that you can ask appropriate questions regarding history, symptoms, treatment received and damages.
It is also advisable to explain to the potential client the significant obstacles in pursuing a medical negligence claim, including the costs that are likely being incurred. In addition, how attorneys’ fees are to be charged and collected should be discussed. An informed understanding of those matters will obviously minimize the likelihood of client dissatisfaction, but it will also aid in your evaluation of the potential working relationship that you will have with the client.
If at the initial client conference, you have an uneasy feeling about the client, you should give serious consideration to declining the case, even if it appears to have merit.
C. Beware of the Impact of HIPAA on How You Gather and Review Medical Records.
The Health Insurance Portability and Accountability Act of 1996 (HIPAA) protects patient records from subpoena, discovery or disclosure, with limited exceptions. (42 U.S.C. 299b-22). Violations of HIPAA subject the violator to civil penalties (45 CFR§160.300, et seq), or equitable relief, including injunction. However, there is no private cause of action for a violation of HIPAA. (65 FR82462-01, 82566): although such a violation could be used as evidence to support a claim for a violation of the right to privacy or another cause of action.
HIPAA does not preclude the production of medical records in response to a discovery request, subpoena or court order. (Hutton v. City of Martinez, 219 F.R.D. 164 (N.D. CA 2003)).
42 CFR§476.68 establishes the allowable costs for copying charges. The current allowable charge for copying is twelve cents per page. Answers to frequently asked questions about HIPAA can be found at www.hhs.gov/hipaafaq/use/index.html.
D. How to Best Determine Who All the Parties Are.
Following expert review(s), if your case has likely merit, you should have received some guidance as to the identity of the potential defendants. Although the Nilsson and DeBenedetto decisions will encourage defendants to seek to have the jury apportion fault against non-named “parties,” it is still inadvisable to include unnecessary defendants in a medical negligence case. Adding unnecessary defendants to such litigation will have the negative impact of adding defense lawyers who will try to defeat your claim, requiring you to hire additional experts in the specialty of each new defendant and increasing the costs and burdens of pursuing the claim.
Since the plaintiff bears the burden of proof against each defendant, if you pursue tenuous claims of liability against one or more defendants, it will diminish the credibility of your meritorious claims. In addition, adding additional defendants could have the effect of complicating the case, creating confusion and jeopardizing a plaintiff’s ability to obtain a favorable result. Consequently, it is generally advisable to avoid making tenuous claims or adding marginal defendants so as to avoid distracting attention from the stronger parts of the case and wasting time and money on unproductive issues.
E. When Expert Consultation and Review is Necessary.
RSA507-E:2(II)(a) places the burden of proof on the plaintiff to establish the applicable standard of care, its breach and causation of damages through expert testimony. However, it is recommended that you satisfy yourself that there is a reasonable chance of a favorable expert opinion before spending the time and money on such a review.
After your initial evaluation, if you have determined that proceeding further is warranted, the pertinent medical records should be obtained. Once those have been organized, a thorough review will be required (perhaps with the assistance of a nurse paralegal). You should then be able to make your own judgment as to whether formal expert review is indicated.
F. Firmly Establish Potential Areas of Liability.
RSA 507-E:1(III) broadly defines medical injury as:
“Any adverse, untoward or undesired consequences rising out of or sustained in the course of professional services rendered by a medical care provider, whether resulting from negligence, error, or omission in the performance of such services; from rendition of such services without informed consent or in breach of warranty or in violation of contract; from failure to diagnose; from premature abandonment of a patient or of a course of treatment; from failure to properly to maintain equipment or appliances necessary to the rendition of such services; or otherwise arising out of sustained in the course of such services.”
This Statute includes many potential causes of action relating to medical negligence including, but not limited to, acts or omissions, lack of informed consent, breach of warranty, abandonment, and failure to maintain equipment. Since the evidence necessary to support a claim for malpractice is to be judged by the question of “whether the person against whom the claim was made has acted with due care having in mind the standards and recommended practices and procedures of his profession…,” the expert opinions obtained in your investigation will likely determine the areas of liability to be claimed against the defendants.
However, it is important to make sure that your claims of medical negligence were the proximate cause of the claimed damages. Obviously, even if negligence may be obvious, if that negligence did not proximately cause the damages sustained by the plaintiff, then you cannot sustain the burden of proof required under RSA 507-E:2.
Potential areas of liability that may be considered under appropriate facts and circumstances include:
a. Negligent infliction of emotional distress (Corso v. Merrill, 119 N.H. 647 (1979));
b. EMTALA (Emergency Medical Treatment and Active Labor Act; See, Carlisle v. Frisbee Memorial Hospital, 888 A 2nd 405 (2005));
c. Federal Tort Claims (28 USC§2671, et seq.);
d. Vicarious liability pursuant to employee negligence, apparent agency or nondelegable duties (strictly speaking this is not a separate cause of action but rather a means of imposing liability on a defendant for the actions of others);
e. Negligent credentialing;
f. Loss of consortium
G. Malpractice or Poor Results? Which Is It?
Common refrains from the defense is that the defendant medical care provider does not guarantee results, or the damages alleged were a known risk of the procedure that can occur in the absence of negligence, or the outcome was merely a bad result or bad outcome. All of these arguments are challenges to the plaintiff’s proof that the harm suffered was caused by the defendant’s breach of the applicable standard of care.
A medical malpractice jury will commonly be instructed along the lines of the following:
The defendant (medical care provider) cannot be found legally at fault simply because his or her treatment culminates in an unfortunate result. To find the defendant legally at fault, you must find that the unfortunate result was caused by professional negligence.
An essential part of the analysis of a potential case by plaintiff’s counsel includes establishing all of the elements of the plaintiff’s burden of proof under RSA507-E:2 so as to make sure that the claimed damages were caused by negligence, rather than merely being an unfortunate result.
H. How to Properly Begin Legal Action.
Once you have determined that a lawsuit is warranted in a particular case, you need to determine who the defendants will be and the allegations against each. Suit should be brought against the individual medical care provider’s employer such as a medical group, hospital or corporation. If there is no additional insurance coverage available by maintaining an action against the individual medical care provider, you may elect to proceed only against the corporate defendant.
The allegations in your Writ of Summons or Complaint should establish all of the elements of a prima facia case as required under RSA 507E:2 and RSA 508:13 in a clear and concise manner, and they should be supported by the opinions expressed by your experts.
IV. USE EXPERT WITNESSES TO SUPPORT YOUR CASE
A. Why Expert Testimony is so Important.
Expert testimony is an essential part of virtually all malpractice claims (RSA 507-E:2(II)(a), with the rare exception where the alleged negligence was “within the purview of the average juror\\\\\\\” (Powell v. Catholic Medical Center, 145 N.H. 7 (2000)), or the compelling facts and circumstances warrant the jury instructions on the doctrine of res ipsa loquitur (Boisvert v. Sluyters, et al. Hillsborough, SS, Northern District 04-C-0421 Order on issues of res ipsa lacutor October 4, 2006).
B. Guidelines for Determining the Qualifications of the Experts You Need.
Since the plaintiff bears the burden of proving “the standard of reasonable professional practice in the medical care provider’s profession or specialty” at the time in question, it is incumbent upon the plaintiff to retain experts who are qualified to testify as to such standards of care. Often that means that you should hire an expert within the same specialty as the defendant, or at least one who provides the same type of care that was provided by the defendant and which will be the subject of the litigation.
The qualifications of an expert witness must be determined on a case by case basis. Mankoski v . Briley, 137 N.H. 308 (1993); New Hampshire Rules of Evidence 702.
The New Hampshire Supreme Court has applied these principles in light of the particular qualifications of the proposed expert to:
1. permit an ophthalmologist to testify regarding the standard of care for an emergency room physician (Hodgdon v. Frisbie Memorial Hospital, 786 A 2nd 859 (NH 2001));
2. uphold the exclusion of testimony from a pharmacologist regarding the standard of care for an ophthalmologist (Bissett v. Renna, 142 N.H. 788 (1998));
3. permit a family practitioner to testify regarding a matter ordinarily within the purview of a gynecologist, (State v. Pelletier, 818 A 2nd 292 (NH 2003));
4. require a voir dire examination of an orthopedist prior to determining his qualifications to testify regarding psychological harm (Mankoski v. Briley, supra);
5. prevent a surgeon with no experience in neurology in testifying regarding neurologic impairment (Figlioli v. RJ Moreau Companies (January 6, 2005)).
C. The Best Techniques for Finding Expert Witnesses.
Consulting experts with whom you have worked in the past and in whom you have confidence is still the best way to find an expert. However, it is not always possible to follow that route in finding appropriate experts, especially in light of the increasing number of subspecialties in medicine.
With the development of various listservs including those available through the American Association of Justice (formerly ATLA) a significant tool for locating well qualified experts has become available. AAJ maintains several medical negligence listservs and there is often a free exchange of recommendations for experts in many specialties.
Other means for locating experts can be through cooperation among New Hampshire lawyers who practice in the area of medical negligence; contacting authors of medical literature at issue in the case; professional associations; publications in which experts are listed; appellate court decisions in which experts may be listed and sometimes are commented on by the presiding judge; or expert witness services.
D. How Winning Attorneys Use Experts.
It is advisable to review the pertinent medical records prior to consulting with an expert. In so doing you will not only reduce the cost of an expert review, by limiting the volume of records that would be sent to the expert, but you will be better prepared to understand the issues in the case, which will also permit a better understanding of your expert’s opinions. You may even be able to direct an expert’s attention to issues that had not previously been considered.
Despite the “work product doctrine” which could shield some communications between an expert and counsel, it is generally advisable to limit commentary and strategy regarding a case in any such communications. You may want to ask your experts to recommend authoritative sources that you can review in order to become better educated on the subject of the medicine at issue in the case. Following most conversations with experts, you should dictate or write a summary of your conversation so that the content of the conversation is recorded and accessible for future reference.
Expert disclosures are now governed by RSA 516:29-b, which requires expert’s reports. However, defense counsel is often willing to waive that requirement at the time of a Structuring Conference Order, which would permit adherence to the old practice of the disclosure consisting of counsel’s summary of expected expert testimony. Regardless, the disclosure should provide an accurate summary of the expert’s expected testimony and the basis and reasons therefore, along with a summary of the information reviewed by the expert, a copy of the expert’s curriculum vitae and a disclosure of the rates charged by the expert for participation in the case.
Prior to an expert’s deposition, you should talk with that expert in order to make sure that he or she is prepared by having reviewed the client’s medical chart in order to have a firm grasp of the necessary facts to support his or her opinions and that he or she is aware of the likely areas of cross examination.
VI. GIVE ETHICS PROPER CONSIDERATION
A. Identify and Avoid Harmful Conflicts of Interest.
Potential conflicts of interest in the representation of patients in medical negligence cases are most commonly presented to lawyers working at larger firms that represent healthcare providers. Regardless of the size of your law firm or the types of clients and legal areas for which your firm provides representation, it is important to check for conflicts of interest with your co- employees and to make a search for potential conflicts with current and former clients who may have an adverse interest to the potential client.
Rule 1.7 of the Rules of Professional Conduct prohibits a lawyer from representing one client, if to do so would be directly adverse to another client. Similarly, Rule 1.9 prohibits representation of a client in the same or a substantially related matter in which a lawyer represented a former client, if those clients’ interests are “materially adverse.” (See, NHDA Practical Ethics Article, May 20, 1999).
B. Ethics During Discovery.
Phinney v. Paulshock, 181 F.R.D. 185 (D.N.H. 1988) remains the leading case concerning attorney misconduct in New Hampshire medical negligence cases. This case within a case arose from a Motion for Sanctions concerning discovery disputes. Magistrate Judge Muirhead’s 65 page order is the subject of an article and summarized in: “Phinney v. Paulshock, Abusing the Abuser: Discovery Sanctions in Federal Court,” 20 T.B.N. 168 (Fall 1998).
The court ruled that defense counsel made improper speaking objections, instructed a witness who he did not represent to not answer questions, and made coaching objections. Sanctions were imposed. Frequently-cited language from that order states:
It is a matter of trust that attorneys, as officers of the court, are expected to police themselves and play by the rules. If an attorney engages in a pattern of behavior in deposition that he either knows or should know is improper, he depletes the reservoir of trust between attorneys, undermines that collegiality necessary to the efficient and amicable resolution of disputes, and unnecessarily requires court supervision of discovery.
For a thorough review of the law on this issue which has been described as “competitive obstructionism,” see “Playing by the Rules: Strategies for Defending Depositions,” 199 L. Rev. M.S.U.-D.C.L. 645.
Magistrate Judge Muirhead was again asked to address the issue of discovery abuse in McDonough v. Keniston (Slip Op. No. CV-96-586-B [November 3, 1998]). That order is reprinted in the article, “Discovery Sanctions for the Plaintiff’s Counsel,” 21 T.B.N. 92 (Spring 1999). Clear examples of improper instructions not to answer and speaking or coaching objects are recited. Judge Muirhead found them to be “flagrantly improper” and ordered sanctions.
