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Taking Back Control of Healthcare Litigation Taking Back Control of Healthcare Litigation

Taking Back Control of Healthcare Litigation - PowerPoint Presentation

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Taking Back Control of Healthcare Litigation - PPT Presentation

JOHN E HALL JR Esq DAVID W PROCTOR Esq Hall Booth Smith PC Email Jhallhallboothsmithcom Dproctorhallboothsmithcom Phone 4049545000 Atlanta 2055339650 Birmingham Frequency ID: 633779

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Slide1
Slide2

Taking Back Control of Healthcare Litigation

JOHN E. HALL, JR., Esq.

DAVID W. PROCTOR, Esq.

Hall Booth Smith, P.C.

Email: Jhall@hallboothsmith.com

Dproctor@hallboothsmith.com

Phone: 404-954-5000 (Atlanta)

205-533-9650 (Birmingham)Slide3

Frequency

There has been a decrease in the frequency of claims.Slide4

Practitioner Frequency

National Practitioners Data

Base

Nationwide Frequency

Analysis

Source: National Practitioners Data Bank public use file, March, 2015Slide5

Hospital Frequency

Aon

HPL

Benchmark Study

Hospital Frequency

(

per bed)

Aon Hospital Professional Liability and Physician Liability

2015 Benchmark

AnalysisSlide6

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/

NEJMsa1012370Slide7

9% of MDs Accounted for 50% of Complaints

(6-year study period)

% of Physicians

% of Complaints

Source: Hickson

GB,

et al.

JAMA 2002;287:1583-1587

.Slide8

Reasons for decrease in Frequency

What are some of the reasons?

Tort reform

Recession

But both of these are becoming less of a factor. Slide9

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. Slide10

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.Slide11

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.Slide12

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.Slide13

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.comSlide14

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. Slide15

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 injuryPA$78,500,0002013Blunt, Sofia v. Haupt, et alBrain injury

CA$74,000,0002015Correa, Jizelle vs Dr. Geddis Abel v. Bey, New York Hospital Medical Center of Queens, et al. Brain injury, CP, failure to timely perform C-sectionNY$56,615, 0692013Crowell, Matthew v. St. Luke's University Medical Center & Dr. Ronald Kriner

Brain injury, CPPA$55,000,000

2013Martinez, Enzo v. Johns

Hopkins Medical CenterBirth injuryMD$55,000,000

2016Ewing, Isaiah and First Midwest Bankv. University of Chicago Hospital, et al.

Birth injury, HIEIL$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

$44,105,000Slide16

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

$62,000,0002016Cruz, Llaulin v. St. Barnabas Medical Center, Dr. Micahel IhemagubaEpisiotomy with perforationNY$50,000,000

2015Beloyianis, Edward et al. v. New York Presbyterian and Dr. David Roye et al.Paralysis and eventual death after spinal surgeryNY$45,600,0002016Tate, Andrea v. Hospital of the University of PennsylvaniaNeurosurgical complications PA$44,100,0002013

Whyte, Dale v. Dr.'s Basil Mangra and Thomas Rodenberg, Atlantic Surgery Center

Chiropractic procedure under anesthesia led to coma and vegetative stateFL

$38,570,0002015Dubose -

Kinney, Sonia v. North Fulton Medical Center, et al.Kidney surgery led to paralysis and eventually deathGA

$36,000,0002013Haughie, 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

$26,802,018Slide17

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 alStrokeCA$38,614,5872015Larkin, Andrea v. Dr. Jehane Johnstone (IM), et al.

Maternal strokeMA$35,400,0002015Pierre, Dens v. Bethesda Memorial Hospital; Dr. Jeanne Uy Go; et al.Infant stroke, brain damageFL$28,450,0002015Stern, Gary vs Dr.'s Todd Heller & Steven EpsteinOrgan damageMD$28,374,1942015

Beauchamp, Carl v. Rhode Island Hospital (LifeSpan)Misdiagnosed brainstem herniationRI

$25,590,0192014

Mayo, Ascaris v. Dr. Wyatt Jaffe & PA Donald GibsonMisdiagnosed infection led to amputation

MN$25,342,0962013

Denton, Christopher vs Chu, EdwardCardical arrestVA$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

$21,400,000Slide18

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. HealthSouthDeathAL$20,000,0002015Pressey, Naomi v. Children's Hospital of ColoradoBrain damage

CO$17,800,0002016Koon, Brian v. St, Louis University Hospital and Dr. WaldenNegligent prescribingMO$17,600,0002013Briant, Mackenzie v. Seattle Children's HospitalChild paralysisWA$15,200,0002012Oden, Theresa vs SpringhillWrongful deathAL

$15,000,000Slide19

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 deathTN$30,035,000*$28,000,000 punitive*2015The Estate of Doris L. Cote v. Five Star Quality Care Inc. et al. Wrongful death

AZ$19,210,000Slide20

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 hepatitisNV$24,000,0002014Buri, Carlos .s Mt. Sinai Med Ctr., et al.Brain damage due to respiratory mismgmnttNY

$22,977,2002015Turner, Jeanette vs Mercy Medical Center/Trinity et al.Tracheal tube complication leading to brain injuryIL$22,100,0002012Slevin, Stephen vs Dona Ana CountyImproper inmate careNM$22,000,0002012Neel, Mark vs Gairhan, Hickey, et alPost surgical infection, cardiac arrest and death

TX$20,000,0002016

Caden Clark, v. Columbia Medical Center of Arlington Subsidiary, L.P.

et al.Tracheal tube complication leading to deathTX

$19,693,2572013Merritt, Sheriod vs Grady

Hospital/Fulton DeKalb Tracheal tube complication leading to brain damageGA

$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

$15,261,070Slide21

Severity

Reasons for this increase in severe or aberration verdicts:

Case selection;

View of corporate medicine;

bricks and mortar liability.Slide22

Bricks and Mortar Liability

Hospitals named in lawsuits to attempt to create an impersonal defendant and enterprise liability. Slide23

Severity

Reasons for this increase in severe or aberration verdicts:

New proof models and strategies by plaintiffs:

Reptile Theory;

Life care planners.Slide24

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!)Slide25

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.Slide26

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. Slide27

Life Care Planners

Origin

Development

ProblemSlide28

Severity

Other reasons for increase in severe or aberrational verdicts:

Decease in skill and experience of the defense bar;

Third party bill review;

R

ate pressure due to soft market;

L

ack of trials;

Lack of willingness to train.Slide29

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).Slide30

Changing strategies in defense of cases

Recognizi

ng trends from plaintiffs’ attorneys:

Reptile theory;

E

vidence

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.Slide31

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 damagesSlide32

Changing strategies in defense of cases

Assume the Burden of Setting the Value at the Outset

Anchoring the Value

Developing the Value

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.

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.Slide33

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.Slide34

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. Slide35

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.Slide36

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.

Anchoring the value Slide37

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. Slide38

Developing the value

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 since the event until the present - Actual costs vs.

Billed?

Show what collateral sources have been (trial/settlement

).

Set the real value of the case

early.

Strategies for real future costs and supporting value

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.Slide39

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.Slide40

RISKS

UNIQUE TO HOSPITALSSlide41

Risks Unique to Hospitals

Release of Records/ HIPAA

Spoliation and Legacy Systems

Cybersecurity

Informed Consent

EMTALA

Violations

Premises

Liability

Employment Actions

Policy Failures

Inadequate Staffing

Credentialing Claims/ HCQIA

Social MediaSlide42

Release of Records

If records are compromised, do you have to notify the patients?

It depends.

WRONGFUL RELEASE OF MEDICAL RECORDS

and CYBERSECURITYSlide43

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). Slide44

C

ybersecurity

Ten things

that reduce risk and increase security

:

Train employees/create culture of cyber security

Keep current with security software updates (patches)

Physical security

Procedures & processes

Back-up data protection

Insurance

Mobility

Informal communications

Social Media

Web SurfingSlide45

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.Slide46

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).Slide47

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.Slide48

Employment Actions

Be on the lookout for:

Employee

Privacy Issues

Claims involving same are on

the r

ise

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 LawsSlide49

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.Slide50

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.Slide51

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.Slide52

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.Slide53

Identification of FacilitySlide54

Identification of Patient and HIPAA Violations

26

,

4

00

t

housand

“Likes”Slide55

HIPAA Violations

March 4, 2016Slide56

StaffSlide57

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) Slide58

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 Slide59

Monitoring ToolsSlide60

ROLE OF ELECTRONIC RECORDSSlide61

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.govSlide62

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.Slide63

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.Slide64

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.Slide65

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.Slide66

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)Slide67

TRYING MORE CASESSlide68

Should We Try More Cases: Six Myths of Malpractice Trials and Why More Cases Should Be TriedSlide69

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.Slide70

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.”Slide71

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. Slide72

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.Slide73

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).Slide74

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.Slide75

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. Slide76

ROLE OF SPECIALTY COUNSELSlide77

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.Slide78

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.

W

ill assist in the evaluation of potential for liability and estimation of probable damages.

W

ill

devise strategies for successful and timely resolution of the litigation.Slide79

National Counsel Model

I

nvolves

:

Aggressive

state of the art defense on

liability.

D

etermined

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. Slide80