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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Slide1Slide2
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