Like most things in life, experience breeds wisdom. If you handle medical malpractice cases, as we do, over time you will learn some of the most common mistakes that lawyers make in handling these cases and how to avoid them.
Poor Intake Decisions
There is no bigger mistake than a bad decision to pursue a case. Medical malpractice cases often take years to litigate and tens if not hundreds of thousands of dollars to fund. Pursuing a case that lacks merit or where the damages are insufficient to justify the time and expense of the case will lead to misery for the lawyer and client alike. We typically look for three things before we will agree to accept a case: strong liability, significant harm or loss, and a good plaintiff.
Using an Incomplete Record
The little details always matter in medical malpractice cases. Unless you have the complete medical record, you will be missing some of these details. When clients or referring attorneys come to us, they often provide some of the medical records. However, these are often incomplete, lacking things such as physician orders, medication administration records, nursing notes and reports and progress notes from occupational, physical and speech therapists. Additionally, there may be missing records from other important medical providers. Making decisions about a case without the complete record means that important details may be missed that will lead to failing to identify necessary defendant or claims, of failing to anticipate a defense.
Suing the Wrong Parties
One of the biggest challenges is medical malpractice is identifying all the right parties. This is difficult, because the client may have seen many medical providers, and it may be unclear who was responsible for the negligence. The medical chart might leave the false impression that one provider was responsible, when later testimony reveals that this provider delegated or relied upon different provider for the critical care. In such cases, failure to anticipate and include this second provider may prove fatal to the case, particularly if the statute of limitations has run by the time you obtain the testimony.
One solution is to name the corporation that employs the providers, whether this is a hospital or primary care practice. However, even this strategy is fraught with risk because medical corporations are increasingly relying upon non-employee contractors such as locum tenens or temp employees. Because it may not be clear who employs individual providers, it is critical to plead agency in addition to vicarious liability.
Hiring the Wrong Experts
Expert testimony plays a larger role in medical malpractice cases than in other practice areas, because courts typically require expert testimony to establish the standard of care, breach, causation, and damages. Not any doctor will do. To have the right qualifications, the doctor often must be able to testify that he or she has education, experience, training, and skill in the same medical sub-specialty as the defendant provider. For cases naming multiple defendants in different specialties, you may be required to produce expert testimony in each subspecialty.
Finding doctors who are willing to testify against other doctors is not easy. Most of the time, it requires locating a doctor outside of the state where the case is filed, because in-state doctors are unlikely to testify against other providers in the same community. First, doctors may worry about obtaining a reputation for criticizing their peers. Second, many doctors rely upon referrals from other doctors in the community, so testifying against a fellow provider runs against their economic self-interest.
When it comes to “national” experts, there can be other problems. Any expert who is willing to testify just for the money will be a problem because he or she will likely lack the professional credentials and credibility needed to win the case. Doctors and hospitals are almost always able to find highly qualified experts willing to support their care, even in some of the most egregious cases of negligence. Without an expert of equal stature your client will be at a significant disadvantage.
Failing to Understand the Mechanism of Harm (Medical Causation)
In many medical malpractice cases, proving negligence is the easy part. The harder part is showing how the negligence caused the alleged harm. The fact is that people become sick and die every day from natural causes without medical negligence. Surgeries do not come with a guaranty of good results. Consequently, just because something bad happened following an act of medical negligence does not prove that the bad thing was caused by the negligence. In our experience, many lawyers become too focused on the negligence and do not spend enough time trying to understand how (and whether) the negligence caused the harm.
For the relationship between the negligence and the harm to be compelling, it must be simple and easy to explain to a lay jury. Our test is that want to be able to show the mechanism of harm in a way that anyone can easily understand, using visual illustrations. If we cannot meet this test, it probably means we need to spend more time understanding the mechanism of harm.
Over-Medicalizing the Case
Most medical malpractice cases may involve complex medical issues. However, the case must be presented to a jury in simple terms using common themes accessible to people who lack a medical education. When lawyers speak in arcane medical language, it confuses and alienates the jury. Rather than focusing on the medicine, the case should focus on common-sense themes that everyone can understand: the doctor did not listen to or spend enough with the patient; the providers did not communicate; the providers cut corners and chose not to order the right tests; the providers ignored the problem or failed to monitor the patient.
Missing the Forest Through the Trees
These days, medical care is highly specialized and dispersed. On a single day, a patient admitted to a hospital may encounter a dozen different providers—doctors, mid-levels, nurses, and therapists. If your case focuses on the conduct of individuals, each provider will enjoy some degree of plausible deniability, asserting that someone else was responsible for the care. This focus on individuals misses the fact that modern medical care is provided through a system. The system involves having enough qualified care providers to meet the needs of the patient; proper policies and training to ensure that the providers do their jobs; requirements for documentation and communication to prevent critical information from being missed; and oversight, supervision and accountability to make sure that the system works, and errors are not repeated. Sometimes good providers are trapped in a bad system, and it is really the system that has failed to provide quality, safe medical care to the patient.