Med Mal Litigation

Imagine that you are a physician defendant in a medical malpractice trial that is set to start in two weeks. Settlement talks have fizzled. The plaintiff's demand is ridiculously high. With your defense attorney ' who was hired by your medical malpractice insurer ' you have evaluated the case up and down, front, back and sideways. You've thoroughly analyzed liability, damages and the trial venue. You have huddled with the insurance company claims adjuster, who is willing to take the case to trial. The lawyer your insurer hired for you seems nice, but in the pit of your stomach you have your doubts and just are not sure. You have reviewed in your mind every angle on the case, its percentage odds of winning and losing, the potential verdict range if lost, and have covered all the bases. Still, as you lie awake at night, tossing, turning and worrying about the upcoming trial, you wonder, 'Do I have the right lawyer?'

This question is not aimed at you as a professional, but it might be hard not to take it that way.

Obviously, the answer to this question is important to the physician. Risk-managing one's medical practice involves gauging the quality of the legal advocacy put forth to advance a physician's professional interests. In medical malpractice litigation, as we all know, victory is fleeting but setbacks are long-lasting. Therefore, as an attorney, expect to be evaluated with an eagle eye ' and respond to your client's fears with professionalism and reassurance.

Physician's Evaluation of Counsel

By the time a physician gets a chance to evaluate a lawyer by watching him/her in trial, it may be too late. Some lawyers may come across as great in a conference room, but seem to morph into wimps at trial. Others might come across as timid in person while dealing with the physician client, but turn into pit bulls inside the courtroom. The physician cannot always draw reliable conclusions about how a lawyer will project to a jury based on phone calls or in-person meetings. Doctors have bedside manners. Attorneys handling medical malpractice cases may have one demeanor and persona in the office, and another in the courtroom ' or they may project consistently in both forums. How is a client to know if the 'right' attorney is on the case? If a physician lacks confidence in the defense attorney, he/she may consider changing attorneys or altering the original strategy, .i.e., consider settling the case.

If the medical malpractice insurer is directing defense counsel, as is often the case, it will take tact, diplomacy and a great selling job on the medical practitioner's part to convince the insurance adjuster that someone else should handle the case. He or she might feel that the attorney has little grasp of the medical issues posed in the case. Perhaps the attorney has failed to return phone calls, has not reviewed the medical literature regarding the proper technique and standard of care or seems to have dallied in retaining the best expert for the defense, possibly due to indolence or insurer-driven cost pressures. Or, maybe it's just nerves.

Remember that the physician's entire future is possibly at stake and don't take his concerns too much to heart (unless, of course, they are justified by your lapses). Maybe another lawyer has been assisting the first string and the physician might feel comfortable putting the backup attorney in the lead position. The words bad faith often have a galvanizing effect on insurance company claim departments, kicking a claim review up the chain of command, perhaps even up to the insurer's home office. If a physician feels that the odds of trial success are diminished due to insurer short-sightedness, he/she will not hesitate to brandish this weapon. Better to work closely with the client and gracefully allow a change in representation if that will ease his or her concerns.

Rx for Depositions

Some physicians do not want or like to be prepared for their depositions. They may have 'stage fright' and want to avoid the conversation as much as possible, or they may feel that too much preparation will make their responses wooden. However, good preparation is essential because when doctors are deposed, plaintiff attorneys are looking for comments ' even out of context ' that they can use to show that the practitioner is callous. Plaintiff attorneys may expect doctors to have a 'God Complex' and be arrogant. They are, among other things, fishing for sound bites they can weave into a compelling theme for a jury.

A well-known Los Angeles plaintiff's attorney, Tom Girardi, says that his goal is to prevail by getting deponents to say stupid things and then using those statements as his theme against the defendant.

As an example, in one instance, during a long deposition, the plaintiff attorney asked a doctor who was part of a managed care staff, 'What rules do you use and play by?'

The physician said, 'The Golden Rule.'

The attorney started to move on but then, almost as an afterthought, asked, 'What do you mean, 'The Golden Rule'?'

The doctor's reply, 'He who has the gold, rules.'

That became the theme for the plaintiff's case ' a very effective theme.

The doctor who is well prepared to testify will, ultimately, feel more confident ' and so will you.

Calling Dr. Phil: My Lawyer Is Having a Breakdown!

In a trial in Beaumont, TX, defense counsel lamented to this author that he felt a tremendous amount of stress. That was not what any defendant (or insurer claims rep) needs to hear from its 'gladiator' during the contest! In another case, in Allentown, PA, trial counsel (from a well-known insurance defense firm) told this author what a pressure-filled situation the case presented. Neither of these pronouncements inspired confidence. By contrast, during week five of a six-week trial in Louisville, KY, a defense attorney reported, 'I've run marathons before and I can hold up for as long as this trial goes.' That's what a doctor/client likes to hear.

Trials are the crucible. They give physicians opportunities to view counsel in a light not available in other settings. Yes, trials are stressful, but the last thing a doctor wants to hear from his or her lawyers during trial is how much stress the attorneys are under. Good litigators accept this as part of the package and do not raise the physician's anxiety by emoting about it. (Tip to counsel: If a medical malpractice case is turning sour during trial then, yes, share that with the physician/client! If you are feeling stressed, though, keep it to yourself. Exercise emotional self-control. Harry Truman's quote is apt here, 'If you can't stand the heat, stay out of the kitchen.' Trials are counsel's stint in the 'kitchen.')

To assuage any fears the physician may have, ask your client for his/her home phone number and cell number. Make it clear that you expect to communicate each day that trial is going on. That means making yourself accessible. When you talk with your client about the day's trial, be brief, businesslike and get to the key issues. Obviously, physicians are not litigators or trial attorneys. Think of these as five key questions your client would ask you if he/she had thought of it, and be prepared to answer them:

• 'In summary form, what happened today?'
• 'Were there any surprises today? If so, could you elaborate?'
• 'Were today's developments helpful, detrimental to our case, or did they have a neutral impact?'
• 'What happens tomorrow? What do you expect?'
• 'Has anything happened to change your assessment of the case, for good or ill?'

Trials are stressful for physicians too. A lawyer who loses still gets paid. (In fact, with the extra time spent in trial, the lawyer gets paid more.) If the case is lost, the physician (or the doctor's insurer) must pay the tab and pick up the pieces. The moral: If while listening between the lines the defendant determines that defense counsel seems to be cracking under the strain, he or she may be persuaded to reassess settlement options. If this is not the reaction you are looking for, do whatever is possible to avoid it.

Form a Winning Team with Defense Counsel

The defendant physician should be advised to attend as much of the trial as possible. There is no substitute for seeing counsel in action first-hand. In addition, the defendant's presence serves another purpose: Often, plaintiff's counsel will try to score points with a jury by saying things like, 'Look, Dr. Jones is so unconcerned about this trial, she did not even bother to come here!' A doctor's absence risks portraying the practitioner as an uncaring caregiver. Physicians have a tough enough job winning trials without handicapping the lawyer further. Moral: Encourage your client to attend the entire trial, if possible. It sends a positive signal to the jury.

The physician who wants the most from defense counsel should be another set of eyes for the attorney, looking at the jury, the witnesses, and the judge and assisting defense counsel in reading jurors' body language. Which jurors seem bored and which ones tuned in? What did their facial expressions signal when plaintiff's counsel raised an objection? How interested did they seem to be during the testimony of the chief defense expert?

The demeanor and conduct of the physician defendant sitting before the jury is very important. It is often a passive job but it is very significant.

You can expect the opposition to provoke anger in your client, so prepare him/her psychologically in advance to resist taking the bait. In this regard, the defendant should be advised to exercise emotional self-control during this stressful experience and monitor his or her own body language, which the jurors, witnesses and judge will also be observing. For example, in one trail, the doctor was defending against an accusation that he threw his nurse assistant against a wall when he fired her. Counsel worked hard to help the doctor to control his temper, since every time he became emotional or upset he turned beet-red. Things went well during his direct exam, until counsel gave the doctor a pointer while referencing an enlarged exhibit describing the doctor's office's floor plan, to refute how the incident allegedly occurred. The defendant never showed physical or verbal anger and never turned red, but, he opened and closed the pointer so hard and so fast in his hands, because of his agitation, that when counsel looked at the jurors, he could clearly see that all they were doing was watching the anger in that pointer! Moral of the story: Do not allow the defendant to hold onto anything if fumbling with it might make him/her appear agitated.

Allow me also to offer an example from outside the medical malpractice arena: An attorney defended a health club in a claim where the plaintiff contended a weight bench was defectively designed. The plaintiff fractured both thumbs, and had both hands in casts for an extended period. She was a sympathetic witness. In contrast, the defendant often looked like he was in a steroid rage, furious over being sued. Legal counsel worked hard to keep that anger from surfacing at trial as it posed a risk of alienating the jury. The defendant ultimately did an adequate job of controlling his feelings, but did 'lose it' at one point on cross-examination. While the end result was favorable for the client, it would have been better had the client not lost his temper in front of the jury. Moral: always keep in mind how the jury will view the defendant physician.

Let your client be forewarned, as well, that levity and jocularity do not play well in a courtroom. The slightest slip can come back to haunt you. In one case, a physician sat at the counsel table with the defense lawyer during a trial. While the plaintiff was testifying, he leaned over to defense counsel, said something and then laughed. The defendant lost the case. The jury was later interviewed, and one juror remarked that she saw the physician do this and was highly offended by it. She considered it disrespectful toward the plaintiff.

It sounds trivial and petty, but warn your defendant doctors that they may even be judged on how they dress and accessorize. Any little thing that antagonizes the jury is a serious matter. A high-powered physician once plopped her Gucci bag (real ' not a knock-off) in the center of counsel's table on day one of trial. Several jurors (none of whom, presumably, could afford a Gucci bag) stared at it with venom until counsel was able sneak it onto the floor.

In fact, the doctor may be judged even by the car he or she uses to drive to court. An Arkansas nursing home owner got popped $12.3 million by a jury when he showed up at trial in his Jaguar. The jury said they were sending him a message that he should spend at least as much on his facility's residents as he did his car. A trial should not be confused with an episode of Pimp My Ride. Tell your client to drive the Chevy to court and leave the Jag in the garage.

Conclusion

There are many 'landmines' that physicians can be aware of and avoid stepping on in their quest for courtroom victory. This discussion is a blueprint for you to discuss with your physician-clients to help maximize their odds of quality legal representation. The preceding guidelines also serve as useful reminders to medical malpractice defense lawyers in harmonizing with their clients in mounting the most effective defense. It is great to have the law or facts (or both) on your side. Winning or losing a medical malpractice claim, however, can often turn on 'squishy' factors unrelated to the law or facts. Both attorney and defendant awareness of these factors and smart adjustments to them in the dynamic environment of litigation can further boost the odds of victory.

Imagine that you are a physician defendant in a medical malpractice trial that is set to start in two weeks. Settlement talks have fizzled. The plaintiff's demand is ridiculously high. With your defense attorney ' who was hired by your medical malpractice insurer ' you have evaluated the case up and down, front, back and sideways. You've thoroughly analyzed liability, damages and the trial venue. You have huddled with the insurance company claims adjuster, who is willing to take the case to trial. The lawyer your insurer hired for you seems nice, but in the pit of your stomach you have your doubts and just are not sure. You have reviewed in your mind every angle on the case, its percentage odds of winning and losing, the potential verdict range if lost, and have covered all the bases. Still, as you lie awake at night, tossing, turning and worrying about the upcoming trial, you wonder, 'Do I have the right lawyer?'

This question is not aimed at you as a professional, but it might be hard not to take it that way.

Obviously, the answer to this question is important to the physician. Risk-managing one's medical practice involves gauging the quality of the legal advocacy put forth to advance a physician's professional interests. In medical malpractice litigation, as we all know, victory is fleeting but setbacks are long-lasting. Therefore, as an attorney, expect to be evaluated with an eagle eye ' and respond to your client's fears with professionalism and reassurance.

Physician's Evaluation of Counsel

By the time a physician gets a chance to evaluate a lawyer by watching him/her in trial, it may be too late. Some lawyers may come across as great in a conference room, but seem to morph into wimps at trial. Others might come across as timid in person while dealing with the physician client, but turn into pit bulls inside the courtroom. The physician cannot always draw reliable conclusions about how a lawyer will project to a jury based on phone calls or in-person meetings. Doctors have bedside manners. Attorneys handling medical malpractice cases may have one demeanor and persona in the office, and another in the courtroom ' or they may project consistently in both forums. How is a client to know if the 'right' attorney is on the case? If a physician lacks confidence in the defense attorney, he/she may consider changing attorneys or altering the original strategy, .i.e., consider settling the case.

If the medical malpractice insurer is directing defense counsel, as is often the case, it will take tact, diplomacy and a great selling job on the medical practitioner's part to convince the insurance adjuster that someone else should handle the case. He or she might feel that the attorney has little grasp of the medical issues posed in the case. Perhaps the attorney has failed to return phone calls, has not reviewed the medical literature regarding the proper technique and standard of care or seems to have dallied in retaining the best expert for the defense, possibly due to indolence or insurer-driven cost pressures. Or, maybe it's just nerves.

Remember that the physician's entire future is possibly at stake and don't take his concerns too much to heart (unless, of course, they are justified by your lapses). Maybe another lawyer has been assisting the first string and the physician might feel comfortable putting the backup attorney in the lead position. The words bad faith often have a galvanizing effect on insurance company claim departments, kicking a claim review up the chain of command, perhaps even up to the insurer's home office. If a physician feels that the odds of trial success are diminished due to insurer short-sightedness, he/she will not hesitate to brandish this weapon. Better to work closely with the client and gracefully allow a change in representation if that will ease his or her concerns.

Rx for Depositions

Some physicians do not want or like to be prepared for their depositions. They may have 'stage fright' and want to avoid the conversation as much as possible, or they may feel that too much preparation will make their responses wooden. However, good preparation is essential because when doctors are deposed, plaintiff attorneys are looking for comments ' even out of context ' that they can use to show that the practitioner is callous. Plaintiff attorneys may expect doctors to have a 'God Complex' and be arrogant. They are, among other things, fishing for sound bites they can weave into a compelling theme for a jury.

A well-known Los Angeles plaintiff's attorney, Tom Girardi, says that his goal is to prevail by getting deponents to say stupid things and then using those statements as his theme against the defendant.

As an example, in one instance, during a long deposition, the plaintiff attorney asked a doctor who was part of a managed care staff, 'What rules do you use and play by?'

The physician said, 'The Golden Rule.'

The attorney started to move on but then, almost as an afterthought, asked, 'What do you mean, 'The Golden Rule'?'

The doctor's reply, 'He who has the gold, rules.'

That became the theme for the plaintiff's case ' a very effective theme.

The doctor who is well prepared to testify will, ultimately, feel more confident ' and so will you.

Calling Dr. Phil: My Lawyer Is Having a Breakdown!

In a trial in Beaumont, TX, defense counsel lamented to this author that he felt a tremendous amount of stress. That was not what any defendant (or insurer claims rep) needs to hear from its 'gladiator' during the contest! In another case, in Allentown, PA, trial counsel (from a well-known insurance defense firm) told this author what a pressure-filled situation the case presented. Neither of these pronouncements inspired confidence. By contrast, during week five of a six-week trial in Louisville, KY, a defense attorney reported, 'I've run marathons before and I can hold up for as long as this trial goes.' That's what a doctor/client likes to hear.

Trials are the crucible. They give physicians opportunities to view counsel in a light not available in other settings. Yes, trials are stressful, but the last thing a doctor wants to hear from his or her lawyers during trial is how much stress the attorneys are under. Good litigators accept this as part of the package and do not raise the physician's anxiety by emoting about it. (Tip to counsel: If a medical malpractice case is turning sour during trial then, yes, share that with the physician/client! If you are feeling stressed, though, keep it to yourself. Exercise emotional self-control. Harry Truman's quote is apt here, 'If you can't stand the heat, stay out of the kitchen.' Trials are counsel's stint in the 'kitchen.')

To assuage any fears the physician may have, ask your client for his/her home phone number and cell number. Make it clear that you expect to communicate each day that trial is going on. That means making yourself accessible. When you talk with your client about the day's trial, be brief, businesslike and get to the key issues. Obviously, physicians are not litigators or trial attorneys. Think of these as five key questions your client would ask you if he/she had thought of it, and be prepared to answer them:

• 'In summary form, what happened today?'
• 'Were there any surprises today? If so, could you elaborate?'
• 'Were today's developments helpful, detrimental to our case, or did they have a neutral impact?'
• 'What happens tomorrow? What do you expect?'
• 'Has anything happened to change your assessment of the case, for good or ill?'

Trials are stressful for physicians too. A lawyer who loses still gets paid. (In fact, with the extra time spent in trial, the lawyer gets paid more.) If the case is lost, the physician (or the doctor's insurer) must pay the tab and pick up the pieces. The moral: If while listening between the lines the defendant determines that defense counsel seems to be cracking under the strain, he or she may be persuaded to reassess settlement options. If this is not the reaction you are looking for, do whatever is possible to avoid it.

Form a Winning Team with Defense Counsel

The defendant physician should be advised to attend as much of the trial as possible. There is no substitute for seeing counsel in action first-hand. In addition, the defendant's presence serves another purpose: Often, plaintiff's counsel will try to score points with a jury by saying things like, 'Look, Dr. Jones is so unconcerned about this trial, she did not even bother to come here!' A doctor's absence risks portraying the practitioner as an uncaring caregiver. Physicians have a tough enough job winning trials without handicapping the lawyer further. Moral: Encourage your client to attend the entire trial, if possible. It sends a positive signal to the jury.

The physician who wants the most from defense counsel should be another set of eyes for the attorney, looking at the jury, the witnesses, and the judge and assisting defense counsel in reading jurors' body language. Which jurors seem bored and which ones tuned in? What did their facial expressions signal when plaintiff's counsel raised an objection? How interested did they seem to be during the testimony of the chief defense expert?

The demeanor and conduct of the physician defendant sitting before the jury is very important. It is often a passive job but it is very significant.

You can expect the opposition to provoke anger in your client, so prepare him/her psychologically in advance to resist taking the bait. In this regard, the defendant should be advised to exercise emotional self-control during this stressful experience and monitor his or her own body language, which the jurors, witnesses and judge will also be observing. For example, in one trail, the doctor was defending against an accusation that he threw his nurse assistant against a wall when he fired her. Counsel worked hard to help the doctor to control his temper, since every time he became emotional or upset he turned beet-red. Things went well during his direct exam, until counsel gave the doctor a pointer while referencing an enlarged exhibit describing the doctor's office's floor plan, to refute how the incident allegedly occurred. The defendant never showed physical or verbal anger and never turned red, but, he opened and closed the pointer so hard and so fast in his hands, because of his agitation, that when counsel looked at the jurors, he could clearly see that all they were doing was watching the anger in that pointer! Moral of the story: Do not allow the defendant to hold onto anything if fumbling with it might make him/her appear agitated.

Allow me also to offer an example from outside the medical malpractice arena: An attorney defended a health club in a claim where the plaintiff contended a weight bench was defectively designed. The plaintiff fractured both thumbs, and had both hands in casts for an extended period. She was a sympathetic witness. In contrast, the defendant often looked like he was in a steroid rage, furious over being sued. Legal counsel worked hard to keep that anger from surfacing at trial as it posed a risk of alienating the jury. The defendant ultimately did an adequate job of controlling his feelings, but did 'lose it' at one point on cross-examination. While the end result was favorable for the client, it would have been better had the client not lost his temper in front of the jury. Moral: always keep in mind how the jury will view the defendant physician.

Let your client be forewarned, as well, that levity and jocularity do not play well in a courtroom. The slightest slip can come back to haunt you. In one case, a physician sat at the counsel table with the defense lawyer during a trial. While the plaintiff was testifying, he leaned over to defense counsel, said something and then laughed. The defendant lost the case. The jury was later interviewed, and one juror remarked that she saw the physician do this and was highly offended by it. She considered it disrespectful toward the plaintiff.

It sounds trivial and petty, but warn your defendant doctors that they may even be judged on how they dress and accessorize. Any little thing that antagonizes the jury is a serious matter. A high-powered physician once plopped her Gucci bag (real ' not a knock-off) in the center of counsel's table on day one of trial. Several jurors (none of whom, presumably, could afford a Gucci bag) stared at it with venom until counsel was able sneak it onto the floor.

In fact, the doctor may be judged even by the car he or she uses to drive to court. An Arkansas nursing home owner got popped $12.3 million by a jury when he showed up at trial in his Jaguar. The jury said they were sending him a message that he should spend at least as much on his facility's residents as he did his car. A trial should not be confused with an episode of Pimp My Ride. Tell your client to drive the Chevy to court and leave the Jag in the garage.

Conclusion

There are many 'landmines' that physicians can be aware of and avoid stepping on in their quest for courtroom victory. This discussion is a blueprint for you to discuss with your physician-clients to help maximize their odds of quality legal representation. The preceding guidelines also serve as useful reminders to medical malpractice defense lawyers in harmonizing with their clients in mounting the most effective defense. It is great to have the law or facts (or both) on your side. Winning or losing a medical malpractice claim, however, can often turn on 'squishy' factors unrelated to the law or facts. Both attorney and defendant awareness of these factors and smart adjustments to them in the dynamic environment of litigation can further boost the odds of victory.