Will med/mal suit be filed? Here's how attorneys decide
A medical malpractice case must have several characteristics
Did the physician act as a reasonably careful professional? If not, did the failure to act in this manner cause a significant injury?
These are the two most important factors plaintiff attorneys consider when deciding whether to pursue a malpractice claim, according to Steven M. Levin, JD, founder and senior partner at Levin & Perconti in Chicago. "We are often asked to review cases that show that malpractice was committed, but there is no relationship between the malpractice and the patient's injury or death," Levin says.
At times, the firm initially pursues cases because the practitioner's misconduct is so significant, but attorneys later realize that it is difficult or impossible to link the misconduct with the patient's injury or death. "In other words, we take the case because we are horrified by the conduct and do not pay enough attention to whether the conduct really caused significant harm," Levin says.
If the chart includes careful documentation of the physician's thought process and shows the physician has appropriately advised the patient about options, "we most likely would not take that case," says Levin. "If the record is poorly documented, has gaps, or is contradictory, this raises our antenna."
Here are factors that make it more likely the plaintiff attorney will decide not to pursue the claim:
• Cases in which malpractice was committed, but the injury that resulted is not significant enough to merit the time or expenses involved in prosecuting a malpractice case.
"We want to make sure we can connect the malpractice to the harm caused, and that the harm that occurred is significant enough to merit the emotion, time, and expense involved in bringing these matters to conclusion," says Levin.
Caps on non-economic damages in Texas and other states are now a factor when plaintiff attorneys are looking at the potential value of the case to see if it's worth their while, says Jennafer Groswith, JD, an attorney with Wilson Elser Moskowitz Edelman & Dicker in Dallas.
The decision to file a lawsuit involves careful consideration of the strength of the liability case and the amount of the damages, says Joshua M. McCaig, JD, a shareholder with Polsinelli Shughart in Kansas City, MO. "If both factors are favorable, the case will likely be filed. If both are weak, it likely will not," says McCaig. "In situations where the facts are good but damages are minimal — or vice versa — an attorney may consider filing suit just to negotiate a quick settlement."
• Cases in which the plaintiff has difficulty finding an expert to testify that the standard of care was breached.
State requirements regarding expert reports are another factor for plaintiffs to consider, such as Texas's Chapter 74 statute requiring the plaintiff to file an expert report to say the physician was negligent within 120 days of making a claim. "It has to be pretty detailed in terms of laying out what the standard of care is, how the physician breached that standard of care, and providing the causal nexus between the alleged negligent act and the injury that was sustained," Groswith says.
Groswith is aware of several malpractice cases that were dismissed after 120 days because the plaintiff couldn't provide this expert report.
"We also have the opportunity, if they file an expert report that we believe to be inadequate, to file an objection which will be heard before the court," she says. If the judge determines the plaintiff didn't made a good faith effort to comply with the statute, the case gets dismissed.
• Clear, thorough documentation of the physician's decision-making process.
"As a defense attorney, I am constantly telling physicians to document their differential diagnosis," says Groswith. If the chart clearly shows the diagnosis was considered and why it was excluded, this charting can deter a plaintiff from pursing a failure to diagnose claim.
Physicians often go through the differential diagnosis in their head without writing it down or document much too sparsely. "We've heard it and said it one thousand times, but juries think that if it wasn't documented, it wasn't done, even if the doctor swears up and down that it was," says Groswith. "It's like trying to prove a crime with circumstantial evidence."
Good documentation, for better or worse, gives the plaintiff attorney and expert a clear understanding of the care provided and limits their ability to create an argument. "If the documentation is poor, it provides wiggle room to create liability where it may not exist," says McCaig.
When McCaig was contacted by a plaintiff attorney about a possible misdiagnosis case, he obtained a copy of the medical records and pointed out the records of his client that clearly documented the findings of a radiology report and the client's reasonable reliance on the findings of the report. "By taking the time to document thoroughly and describe what he relied upon for his own treatment plan, he was able to avoid being added to the ultimate lawsuit," says McCaig.
• Cases in which there is evidence that the physician was acting in the patient's best interest.
"We look for cases where there is malpractice, plus other conduct that shows that the healthcare practitioner was acting inappropriately because of concerns other than the health of the patient, such as arrogance, rushing, factory-type medicine, and systemic failures," says Levin. (See related story, p. 22, on obtaining an early analysis from an expert.)
Early analysis of claim could deter plaintiff
Defense attorneys should offer strong opinion by expert
If a physician defendant believes a malpractice lawsuit is baseless, one strategy to prevent protracted litigation is for defense attorneys to hire an expert early on to review the case.
"The expert wouldn't necessarily prepare a report, since that would then be discoverable, but could give an opinion as to whether the case has merit," says Jennafer Groswith, JD, an attorney with Wilson Elser Moskowitz Edelman & Dicker in Dallas. "We ended up getting a case settled for much less than it otherwise would have been, by getting a leading expert on heparin-induced thrombocytopenia. Had the expert been able to present his findings early on, it might have curtailed the litigation altogether."
If defense attorneys educate the plaintiff attorney early about the weakness of their claim before they make a significant monetary investment in a case, they sometimes drop it, says Joshua M. McCaig, JD, an attorney with Polsinelli Shughart in Kansas City, MO. Early analysis and having good expert support is the first step, says McCaig, who generally makes an initial phone call to engage the opposing attorney and then follows up with a written analysis of why the case has no merit.
"In certain situations, I will even let the attorney meet with my client or speak with my experts if it may influence their decision to dismiss the case," adds McCaig
Recently, McCaig was contacted by a plaintiff attorney and obtained a quick review by a well-qualified expert fully supporting the care of the family practice physician. At the end of the call, the attorney said he was not going to file the lawsuit. "I suspected that the plaintiff attorney would not have a great expert, if he had one at all, so I let him question my expert," he says. "While this will not work for every case, if you have a strong liability defense, it should be considered." Normally, experts aren't disclosed until the deadline to allow for time to complete discovery, but a report with an expert's strong favorable opinion might be worth producing earlier in the process. "If you let the plaintiff attorney know they are barking up the wrong tree, that could be an effective strategy," Groswith says.
SOURCES
- Jennafer Groswith, JD, Wilson Elser Moskowitz Edelman & Dicker, Dallas. Phone: (214) 698-8074. Fax: (214) 698-1101. Email: [email protected].
- Steven M. Levin, JD, Levin & Perconti, Chicago. Phone: (312) 332-2872. Fax: (312) 332-3112. Email: [email protected].
- Joshua M. McCaig,JD, Polsinelli Shughart, Kansas City, MO. Phone: (816) 395-0651. Fax: (816) 374-0509. Email: [email protected].
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