My approach to medical malpractice cases differs from the approach some attorneys take. There is no single, correct approach. Every approach has upsides and downsides. And any general approach must be modified from one case to the next. In general, though, with occasional exceptions, I take the approach described below for med mal cases (not necessarily for other types of cases).
My approach reflects my background in large-scale commercial litigation — which emphasizes a thorough, detailed, turn-over-every-rock approach to case work-ups. My approach also reflects my experience with insurance bad-faith litigation.
My approach is tailored to the key features of strong medical malpractice cases. Med mal cases differ from a lot of other types of cases. Some features of med mal cases make things harder for plaintiffs (the side filing the legal case). Some features make things a little easier. These features require a different approach than other types of cases. We usually don’t want to work a med mal case the same way we’d work a car crash case, for example.
Note: In the discussion below, I’m not giving away any secrets. The points I make here are obvious to any experienced medical malpractice attorney. My approach does not depend on secrecy or deception. If you like military metaphors for litigation (I don’t): It’s a siege, not an ambush. The better the defense understands their predicament, the better and faster a case is likely to be resolved.
Key Features of Strong Medical Malpractice Cases
The Healthcare Halo
Medical malpractice cases are hard — uniquely hard, perhaps. Healthcare providers come into court wearing a halo, for good reason. Typically, there is not even a hint of malice. And usually, the healthcare providers we’re criticizing did not cause the problem to begin with: The patient already had a problem, and the healthcare providers intervened in some effort to help. (Maybe not much of an effort, maybe an incompetent effort, but some effort.) That’s the basic setting of most med mal cases.
In pressing a med mal case, we’re rolling a boulder uphill. The defense is trying to push the boulder downhill. Their job is a lot easier than ours.
For this reason, any experienced med mal attorney has stringent criteria for which cases to take. These criteria are unfairly, tragically stringent, but the realities of medical malpractice litigation make them necessary.
Cases that meet those criteria — strong cases — usually have the following key features.
Key Facts Out on the Table
Two key features of strong med mal cases favor the plaintiff: The first is that in strong cases, most or all of the key facts are out on the table before the legal case is even filed. The key facts are in the electronic medical records, the radiology imaging, lab reports, etc.
This is a fairly recent development — from the adoption of electronic medical records in recent years. Before that, it was easy for healthcare providers to falsify medical records. Now, that’s much harder. The electronic systems have robust security and auditing features that make it hard to falsify records without being detected. And in most cases, all the important facts are contained in the records themselves. So in medical malpractice cases nowadays, it’s unusual that any important facts have to be obtained only through testimony of defense-affiliated witnesses.
Of course there may still be cases in which key facts remain unknown and would have to be discovered during litigation. But if case-critical facts remain unknown — such that we could lose the case depending on how they turn out — I’m unlikely to take that case in the first place.
Well-Established Principles
The second key feature that favors the plaintiff is that in strong cases, the medical principles that apply to the case are well-established and hard to deny. Usually, they can be found in medical literature — and usually in multiple sources. This makes it easier for us (on the plaintiff side) to prove the principles, and harder for the defense to deny them.
More importantly, because the principles are well established, it becomes dangerous for the defense to deny them. Plenty of defendants and defense experts will still deny the obvious. But by doing so, they risk losing the trust of jurors and increasing the odds of a verdict for the plaintiff. Indeed, in a strong case, I typically don’t care whether the defense admits the principles or denies them: Either way, it helps us.
The Heightened Importance of Credibility
Most lawsuits have a he-said/she-said aspect to them. The different sides tell the jury opposite things, and the jury has to decide who’s telling the truth. That makes things inherently more difficult for the plaintiff (the one bringing the lawsuit), because the plaintiff has the burden of persuasion. If the jury believes no one and just shrugs, then the defense wins.
In medical malpractice cases, the he-said/she-said problem is especially big. First, the healthcare halo makes it harder for jurors to believe a defendant healthcare provider (or defense expert) is not telling the truth. Second, many of the disputed points will concern medical issues that lie beyond the jurors’ knowledge — so they can’t easily decide the truth of the matter. In short, in med mal cases, it’s easy for defendants and defense experts to BS the jury and get away with it.
This makes basic credibility supremely important. Credibility is always important, in every legal case; but when the jury cannot rely on substantive understanding to resolve the dispute, the only way they can resolve it is to decide who is the truth-teller and who is trying to BS them. In medical malpractice cases, credibility is king.
So it is crucial to expose the other side’s dishonesty.
Note: I don’t mean to say the defense is always dishonest. Nor do I mean to say plaintiffs and plaintiff attorneys are always truth-tellers. Certainly not. But in strong cases brought by careful plaintiff attorneys, the defense does resort to dishonest arguments more often than their Sunday School teachers would like.
My Approach
Focus on negligent administration.
For reasons partly discussed elsewhere, I believe most medical malpractice cases should focus on negligent administration. Exceptions arise, but in most cases, the clinicians’ negligence arose from obvious general causes that the facility administrators did not address — for example, failures of communication, failures of training or supervision, lack of standards or protocols. Where the negligence begins with such administrative failings, in my mind the primary wrongdoers are the administrators (and the facility itself), and the individual clinicians who were negligent are secondary (important, but not primary).
Work the case up fully at the beginning.
The complexity and difficulty of med mal cases makes it important to work up a case fully, before filing it. In some other types of cases, it can be safe enough to “get the torpedoes in the water” quickly. With a simple car crash case, for example, the risk of finding some big problem in the case is low, and the time and expense of pursuing a car crash case is low. So you can safely get a car crash case filed quickly, before fully exploring it. That’s not true with medical malpractice cases. Here, there’s a high risk of unseen problems that will undermine the case. These cases need to be worked up thoroughly before they’re filed.
With med mal cases, getting the torpedoes in the water quickly is a good way to blow up your own vessel.
From the beginning, focus on recovering the full verdict amount.
A good verdict after years of litigation doesn’t matter much, if the verdict never gets paid. Most verdicts are paid by liability insurers. And normally, the insurance company is only responsible for the amount of the insurance coverage — which, in medical malpractice cases, is usually inadequate. And few individual defendants have millions of dollars to pay the remainder of a big verdict that exceeds the insurance coverage.
Depending on the jurisdiction and the facts of the case, one way to mitigate the problem is to disclose the basis of the case fully, in detail, at the very beginning, and to follow that disclosure with a settlement offer. In many states, that will accomplish one of these two things: either (a) prompt the defendants’ insurance company to resolve the case early, by paying the defendants’ insurance money, or (b) help to ensure that in the event of a verdict later, the plaintiff will actually be able to collect the full verdict amount. Collecting a smaller amount faster can be better than going through the full litigation to get a verdict, and then having to go through a follow-on litigation to try to collect it. The worst outcome, however, is to spend years litigating a case, only to get a verdict that is largely uncollectible.
Settlement strategy is a case-by-case decision, and it often makes sense to approach different defendants within the case differently. One constant, however, is that from the beginning, the litigation strategy should focus on maximizing the chances of recovering the full amount of a verdict.
Make the defense reveal their character.
Fundamental to my approach to med mal cases is to make the defense reveal their character. Sometimes, they behave honestly and in good faith. Much of the time, they don’t. In a strong case, honesty on the part of the defense makes the case easier. But dishonesty has to be brought out into the open. Jurors need to see the dishonesty clearly. From beginning to end, therefore, a basic part of my approach is to make the defense reveal their character and (when it’s dishonest) to collect a pile of indicators that reveal the dishonesty.
Focus on basic principles.
A surprising number of medical malpractice cases hinge on the most basic principles. For example, many misdiagnosis or delayed diagnosis cases come down to this simple point: If there’s any reasonable chance that a patient has a catastrophic condition, the physician has to investigate it enough to confirm it or rule it out with high confidence.
Because such principles are so fundamental, though, it’s easy to take them for granted. It’s easy to forget to have the defense confirm, in essence, that up is up and down is down. But you have to. Otherwise, when you get to trial, you’ll discover that simple, uncontroversial principles are suddenly disputed. Serious-sounding defense experts will soberly explain that, actually, in fact, up is down. And because it’s a medical issue the jurors have no direct knowledge of, much of the time the defense will get away with it.
So a core part of my approach in working cases up is simply to confirm the obvious with all the defense witnesses. This gets boring and tedious. Sometimes it feels silly. But it’s necessary all the same.
What My Approach Looks Like in Practice
Long, Detailed Complaints Together with Settlement Offers
Typically, I’ll begin the case with a complaint that lays out all the significant facts and the principles that apply to them. The point is to make the defense admit, deny, or claim ignorance of each point. Usually, they try to evade. Depending on the quality of the judge in the case, we may be able to compel a proper response. But even if the defense is allowed to evade, the evasion still reveals dishonesty.
Fully disclosing a case at the outset helps to solve the “ready, fire, aim” problem. It shouldn’t be so, and for better people maybe it isn’t so, but for many of us merely human attorneys, we have a tendency to work toward deadlines and requirements. If we allow ourselves to file cases that do not fully work through the issues explicitly, there’s a significant danger we’ll file a case before working through it fully. That creates a serious danger of missing some major problem. Committing to full disclosure helps to ensure quality work and sound decisions.
Full disclosure also accomplishes one of two things: either (a) narrow the disputes and streamline the case, or (b) reveal the dishonesty and bad faith of the Defense. The defendants have to respond to each statement in the Complaint that initiates a legal case. If they admit what they should admit, then many of the relevant facts will be established immediately. If the defendants refuse to admit what they should, then in one way or another they will reveal dishonesty and bad faith. Whichever path the Defense chooses, it helps the plaintiff. Personally, I have no preference. I like either outcome equally.
Risks of Full Disclosure: The potential downside of full disclosure is that you give up the element of surprise. That can make it easier for defendants and defense experts to figure out what lies to tell, in an effort to get off the hook. (Again, this is not to say all defendants or all defense experts lie.) Generally, because the key facts and principles are out on the table at the beginning, I think we don’t lose much by giving up the element of surprise. To the extent we do, I think what we gain usually outweighs what we give up.
Detailed Interrogatories
I usually begin the case with interrogatories that require the defendants to fully state their positions on all the key issues. They never do. That’s another sign of bad faith, and it complicates their efforts to change or add to their stories later.
Comprehensive Depositions
Any strong medical malpractice case involves catastrophic injury. Such cases merit, and require, serious investment of time and expense. They’re not minor car crash cases. In minor cases, it can make sense to take a “get in, get out” approach to depositions. In med mal cases, I take the opposite approach: If there’s a potentially useful point to address in a deposition, I’ll take the time to address it, however long the deposition takes.
Detailed Expert Disclosures
Medical malpractice cases depend on expert witnesses. And usually, there’s a serious risk that an expert will not be allowed to testify about a point at trial, if the expert did not disclose that testimony during the litigation before trial. I want to preserve the option of expert testimony at trial on any conceivably useful point. So I prefer long, detailed expert disclosures that cover the waterfront.
Risks of Full Disclosure: The potential downside of full expert disclosures is that the defense will be better able to prepare to challenge our expert’s testimony. Again, generally I’m not concerned about that. If we’ve done our jobs right, then our case will stand up to scrutiny. My experience, in fact, has been that the more thorough our expert disclosures, the better prepared our experts are, and the stronger their testimony.