Think ahead, act early to avoid conflicts
It is never too early to think ahead to potential co-defendant conflicts.
Lewis A. Bartell, JD, a partner with Kaplan Belsky in Garden City, NY, says he has seen co-defendants turn on each other many times in his 20 years of litigating medical malpractice and negligence actions, representing health care facilities, nurses, physicians, and other health care providers. Bartell says managers should consider potential difficulties with a co-defendant as soon as a case arises.
When the facility becomes aware of the alleged negligence or malpractice, the first thing the manager must do is assess the situation and determine the relationship between the facility and physician, he says.
"Are both united in interest? If so, then it may be better to have a single attorney represent both," he says. A coordinated defense between the physician and the facility will allow the attorney to best control the defense of the action. "Where one attorney is representing both parties, it will be possible to avoid asserting cross-claims against each other, which only serves to benefit the plaintiff," he says.
Where it is not possible for one attorney to represent both the facility and physician, it still is in the best interest of the facility and physician to coordinate their defense so as to minimize any infighting, which will help the plaintiff in proving the negligence claim, he says.
Helenemarie Blake, JD, a shareholder with the law firm of Fowler White in Miami, says the risk of co-defendant fighting is one reason that the initial stages of investigating a claim are so important. Managers and their counsel need to find as soon as possible where the defendants' interests align and where they don't.
There usually is strength in numbers, Blake says, so managers should look for ways to align with others. This alignment must be done before everyone parts ways and digs in for a battle with the plaintiff.
The manager has to be aware of not only who the current players are in the case, but also who might be drawn into the case at a later date, she says. "You have to think a little bit like the plaintiffs and see what they might want to do with all the potential parties to the case, then reach out to those people and try to align your case with them as best as possible," Blake says.
Bartell recalls one case he defended in which a patient was undergoing eye surgery to have his detached retina repaired, when during the course of the surgery, the patient instantaneously awoke from the anesthesia. The patient ultimately lost total vision in the eye and brought a lawsuit against the hospital, surgeons, anesthesiologist, and the operating room nurses. The plaintiff alleged that the surgeons and operating room nurses should have noticed signs that the patient was coming out from under the effects of the anesthesia and advised the anesthesiologist. All parties denied noticing any signs that the patient was stirring or coming out from under the effects of the anesthesia. Each party maintained the position that they had their independent responsibilities in the operating room and that those responsibilities did not include monitoring the patient's state of consciousness.
Without taking a position on whether the anesthesiologist had done anything wrong, the other parties simply denied any responsibility for that aspect of the surgery. They maintained the position that their conduct was appropriate under the circumstance and did not comment on the anesthesiologist's actions. This allowed the anesthesiologist's counsel to mount a defense against the plaintiff's allegations without having to defend any cross-claims by the hospital, surgeons, or nurses, Bartell explains. In the end, the anesthesiologist settled the action with the plaintiff but was not forced to pay more because of the threat of having a jury hear that there was negligence not only from the plaintiff, but also from the other defendants.
C. Scott Nichols, JD, an attorney with the law firm of Strasburger & Price in Houston, says the bottom line is that to avoid hostile litigation between the facility and physicians, the manager, facility's counsel, and physician's counsel must "coordinate their efforts as early on in the litigation as possible."
"A strong game plan agreed upon by all sides will really be the best defense," Nichols says. "While the parties may not always have the same interests at stake, and may not be able to present an absolutely unified front, identifying this early on will best serve everyone's interests."
Sources
For more information on planning for co-defendant conflicts, contact:
- Lewis A. Bartell, JD, Kaplan, Belsky, Ross, Bartell, Garden City, NY. Telephone: (516) 745-1100, ext. 227. E-mail: [email protected].
- Helenemarie Blake, JD, Senior Partner, Fowler White Burnett, Miami. Telephone: (305) 789-9200. E-mail: [email protected].
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