When Med Mal and Mass Tort Claims Overlap

It is incumbent on the plaintiff's attorney to make sure the identity of the doctor is determined along with a treatment history. Requesting medical records from the treating physician offers the plaintiff's attorney an opportunity to communicate with the treating doctor but, depending on the status of the particular mass tort litigation, a plaintiff's attorney must proceed with caution when contacting the treating physician. Prior to making contact with a physician, the plaintiff's attorney should first research the drug or device to determine if there is ongoing litigation and if there are any Orders entered that control contact with treating physicians. (This article will not discuss the nuances of Multi-District Litigation other than making note that Orders entered in particular MDLs control the actions of the attorneys and may limit some of what the attorney would otherwise do in representing their clients.)

Assuming the attorney is permitted to contact the treating doctor to obtain records, the attorney should attempt to open the lines of communication ' or at least be careful not to alienate the treating doctor at the outset of the potential claim. Specifically, it is not wise to use phrases like “failure to promptly comply could subject you to penalties,” or “your failure to cooperate could implicate you as an additional defendant in this matter.” While a potential medical malpractice claim cannot be ruled out at such an early stage, it serves little benefit to the client or the case to begin the relationship with the treating doctor in an adversarial manner.

Alternatively, simply adding a sentence or two to a standard medical request emphasizing that, at the present time, no claim for malpractice against the treating doctor is being pursued, may facilitate communications as the investigation progresses, and will help preserve the relationship between the patient and the doctor.

'Unknowing Accomplice'

Attorneys representing potential plaintiffs may be faced with a treating physician who instinctively thinks she should not go out of her way to assist, based on the idea that “they sue doctors.” Because treating physicians provide integral testimony in prescription drug and medical device claims, this belief is a hurdle that the plaintiff's lawyer should attempt to overcome. The doctor possesses information potentially relevant to the claim that no one else does ' information that rarely appears in the medical records. The specific information the manufacturer or the representative working for the manufacturer gave to the doctor about the allegedly defective drug or device is valuable information. While the information may ultimately become discoverable and be provided to the lawyer for the patient, approaching the treating doctor as an adversary and souring her from cooperating will hamper the pre-litigation investigation and make that investigation more difficult.

Sometimes, a manufacturer had information regarding the potential defects or dangers associated with a drug or device, but this information was not provided to the treating doctor. Under this circumstance, Anapol Schwartz attorney Michael Schafle, who frequently represents plaintiffs in mass tort litigation, advises that the treating doctor can be treated as an “unknowing accomplice,” where no allegations of negligence are made against the doctor.

In that scenario, it is certainly advantageous for the plaintiff's attorney to determine the role of the doctor as early as possible. If the treating physician is an “unknowing accomplice,” his answers to questions regarding information with which he would have liked to have been provided prior to prescribing the drug or choosing to use the device can prove powerful testimony against a manufacturer.

At the same time, the potential for a medical malpractice claim against a treating physician must not be ignored. The applicable statute of limitations must be immediately determined. If, for example, the potential claim involves a medical device, investigation must be undertaken to ensure that the treating surgeon properly implanted the device. The purpose for this is two-fold: First, if the surgery to implant the device could have been performed negligently, the date when the device was implanted and the date when the patient began to experience problems with the device are very important when assessing where the patient stands with respect to the statute of limitations. Second, issues regarding the surgical technique and whether the treating surgeon was negligent in the implantation could arise later in the litigation as a defense or mitigating factor, so if an investigation is undertaken and evidence is in place to respond to this argument in the early stages, it will be of tremendous help in countering that potential defense.

Mass Tort Plaintiffs

Attorneys representing potential mass tort plaintiffs must be prepared to address their clients' concerns about the conduct of their doctor. Many patients will be frustrated with their situation, and upset that they were prescribed an allegedly defective drug or device. They often will direct that frustration at their treating doctor. When an attorney bringing the claim is aware of the potential malpractice, though, and fully investigates the claim, an informed discussion can be had with the patient. This is often important because the patient may require continuing treatment; sometimes the relationship of the treating doctor and patient can be preserved with proper guidance from the attorney.

Finally, for attorneys representing potential plaintiffs, early research regarding the allegedly defective drug or device must be conducted to determine if any changes to the marketing or warnings have been made between the time the drug or device came on the market and the time when the drug was prescribed to the patient or the device implanted. This is important because a patient may contact an attorney about a drug prescribed to her that she heard or became aware was the subject of litigation. In some cases, however, a warning may have been changed after the inception of litigation but before the prescription was given or the drug taken. Then, the manufacturer may not be liable since measures were taken to cure the problem, and the patient will be precluded from pursing a mass tort claim. If, however, it is determined that the treating physician prescribed a drug in the face of a contrary warning, a claim for malpractice may be appropriate.

Representing the Manufacturer

Attorneys who represent potential defendant manufacturers must also be aware of the potential for malpractice allegations against the treating physician. If, as discussed above, the treating physician may have been negligent in the prescription of a drug or use of a device, this can be a valuable and effective defense for the manufacturer. The use of this defense is not without potential problems. Strategically, the defense may be appropriate; however, the manufacturer then finds itself in the precarious position of shifting the blame to a physician who is the manufacturer's “customer.” While the physician is not the ultimate consumer of the product, the physician makes decisions regarding which drug or device to use for various patients. In that respect, the manufacturer could “bite the hand that feeds it” by making claims of negligence against the doctor. Attorneys representing manufacturers must be aware of this conflict and act accordingly.

Further, communications between the manufacturer and/or its representatives may become discoverable evidence in a mass tort claim. The information provided is often relevant to the claim. Attorneys representing manufacturers can do their clients a great service by providing guidance and advice regarding those communications prior to the marketing of a new drug or device.

Defense Counsel for the Health Care Provider

Medical malpractice defense attorneys must also be aware of the potential overlap between malpractice claims and mass tort claims. When possible, malpractice defense attorneys will want to educate their clients regarding litigation involving drugs or devices that their clients may be prescribing or using on patients. The more information provided to a doctor about potential defects involving drugs or devices and pending litigation regarding those drugs or devices, the better the opportunity for the doctor to avoid becoming a target of a malpractice claim. Additionally, if a claim for malpractice is brought against a doctor arising out of the use of a drug or device, the defense attorney must be aware of any mass tort litigation involving the drug or device to fully defend their clients.

Attorneys representing treating physicians must also be prepared to address the patients' concerns regarding the treatment rendered by the doctor. The attorney will likely not have direct contact with the patient, but if the attorney is able to provide the doctor with information about the mass tort litigation and the basis of the claim, the doctor will be better able to communicate with the patient about the treatment.

Conclusion

Medical malpractice claims and mass tort claims do not always overlap, but when there is the potential for both, attorneys representing all parties involved must be cognizant of the two claims. Ignoring one claim or another could result in malpractice, tactical errors, or a failure to litigate the claim to its fullest. Being aware of the potential for overlap will allow an attorney to ask the right questions of their clients and conduct effective research regarding the relevant issues. Attorneys who are informed regarding these issues will be in a better position to represent their clients and protect their interests.

Jonathan B. Acklen is an attorney with the law firm of Fine and Staud, LLP in Philadelphia. He focuses his practice on seriously injured individuals in medical malpractice, product liability, and other negligence claims as well as medical device and pharmaceutical mass tort claims. He can be contacted at [email protected].

Medical malpractice litigation is often complex, in-depth, and issue-heavy. Mass tort litigation is also often complex, in-depth, and issue-heavy. What happens when those two areas of practice converge during the course of a case? The answer to that question depends, of course, on the facts of each specific case. However, the issues that face attorneys on all sides of the litigation cannot be ignored.

Mass tort claims are typically claims made by individual plaintiffs against a manufacturer of a pharmaceutical or medical device. Prescription drugs require a treating physician's prescription to the patient and medical devices require the treating surgeon to decide to use the particular device. The role of the treating physician, therefore, is integral to the treatment of the patients in these claims. A physician's prescription of a drug or use of a device that is or at some point becomes the subject of a mass tort claim, however, does not always amount to malpractice. As a lawyer representing a potential plaintiff, manufacturer, or treating physician, you cannot ignore the actions and the role the treating physician played in the patient's treatment involving the drug or device.

The Treating Doctor

It is incumbent on the plaintiff's attorney to make sure the identity of the doctor is determined along with a treatment history. Requesting medical records from the treating physician offers the plaintiff's attorney an opportunity to communicate with the treating doctor but, depending on the status of the particular mass tort litigation, a plaintiff's attorney must proceed with caution when contacting the treating physician. Prior to making contact with a physician, the plaintiff's attorney should first research the drug or device to determine if there is ongoing litigation and if there are any Orders entered that control contact with treating physicians. (This article will not discuss the nuances of Multi-District Litigation other than making note that Orders entered in particular MDLs control the actions of the attorneys and may limit some of what the attorney would otherwise do in representing their clients.)

Assuming the attorney is permitted to contact the treating doctor to obtain records, the attorney should attempt to open the lines of communication ' or at least be careful not to alienate the treating doctor at the outset of the potential claim. Specifically, it is not wise to use phrases like “failure to promptly comply could subject you to penalties,” or “your failure to cooperate could implicate you as an additional defendant in this matter.” While a potential medical malpractice claim cannot be ruled out at such an early stage, it serves little benefit to the client or the case to begin the relationship with the treating doctor in an adversarial manner.

Alternatively, simply adding a sentence or two to a standard medical request emphasizing that, at the present time, no claim for malpractice against the treating doctor is being pursued, may facilitate communications as the investigation progresses, and will help preserve the relationship between the patient and the doctor.

'Unknowing Accomplice'

Attorneys representing potential plaintiffs may be faced with a treating physician who instinctively thinks she should not go out of her way to assist, based on the idea that “they sue doctors.” Because treating physicians provide integral testimony in prescription drug and medical device claims, this belief is a hurdle that the plaintiff's lawyer should attempt to overcome. The doctor possesses information potentially relevant to the claim that no one else does ' information that rarely appears in the medical records. The specific information the manufacturer or the representative working for the manufacturer gave to the doctor about the allegedly defective drug or device is valuable information. While the information may ultimately become discoverable and be provided to the lawyer for the patient, approaching the treating doctor as an adversary and souring her from cooperating will hamper the pre-litigation investigation and make that investigation more difficult.

Sometimes, a manufacturer had information regarding the potential defects or dangers associated with a drug or device, but this information was not provided to the treating doctor. Under this circumstance, Anapol Schwartz attorney Michael Schafle, who frequently represents plaintiffs in mass tort litigation, advises that the treating doctor can be treated as an “unknowing accomplice,” where no allegations of negligence are made against the doctor.

In that scenario, it is certainly advantageous for the plaintiff's attorney to determine the role of the doctor as early as possible. If the treating physician is an “unknowing accomplice,” his answers to questions regarding information with which he would have liked to have been provided prior to prescribing the drug or choosing to use the device can prove powerful testimony against a manufacturer.

At the same time, the potential for a medical malpractice claim against a treating physician must not be ignored. The applicable statute of limitations must be immediately determined. If, for example, the potential claim involves a medical device, investigation must be undertaken to ensure that the treating surgeon properly implanted the device. The purpose for this is two-fold: First, if the surgery to implant the device could have been performed negligently, the date when the device was implanted and the date when the patient began to experience problems with the device are very important when assessing where the patient stands with respect to the statute of limitations. Second, issues regarding the surgical technique and whether the treating surgeon was negligent in the implantation could arise later in the litigation as a defense or mitigating factor, so if an investigation is undertaken and evidence is in place to respond to this argument in the early stages, it will be of tremendous help in countering that potential defense.

Mass Tort Plaintiffs

Attorneys representing potential mass tort plaintiffs must be prepared to address their clients' concerns about the conduct of their doctor. Many patients will be frustrated with their situation, and upset that they were prescribed an allegedly defective drug or device. They often will direct that frustration at their treating doctor. When an attorney bringing the claim is aware of the potential malpractice, though, and fully investigates the claim, an informed discussion can be had with the patient. This is often important because the patient may require continuing treatment; sometimes the relationship of the treating doctor and patient can be preserved with proper guidance from the attorney.

Finally, for attorneys representing potential plaintiffs, early research regarding the allegedly defective drug or device must be conducted to determine if any changes to the marketing or warnings have been made between the time the drug or device came on the market and the time when the drug was prescribed to the patient or the device implanted. This is important because a patient may contact an attorney about a drug prescribed to her that she heard or became aware was the subject of litigation. In some cases, however, a warning may have been changed after the inception of litigation but before the prescription was given or the drug taken. Then, the manufacturer may not be liable since measures were taken to cure the problem, and the patient will be precluded from pursing a mass tort claim. If, however, it is determined that the treating physician prescribed a drug in the face of a contrary warning, a claim for malpractice may be appropriate.

Representing the Manufacturer

Attorneys who represent potential defendant manufacturers must also be aware of the potential for malpractice allegations against the treating physician. If, as discussed above, the treating physician may have been negligent in the prescription of a drug or use of a device, this can be a valuable and effective defense for the manufacturer. The use of this defense is not without potential problems. Strategically, the defense may be appropriate; however, the manufacturer then finds itself in the precarious position of shifting the blame to a physician who is the manufacturer's “customer.” While the physician is not the ultimate consumer of the product, the physician makes decisions regarding which drug or device to use for various patients. In that respect, the manufacturer could “bite the hand that feeds it” by making claims of negligence against the doctor. Attorneys representing manufacturers must be aware of this conflict and act accordingly.

Further, communications between the manufacturer and/or its representatives may become discoverable evidence in a mass tort claim. The information provided is often relevant to the claim. Attorneys representing manufacturers can do their clients a great service by providing guidance and advice regarding those communications prior to the marketing of a new drug or device.

Defense Counsel for the Health Care Provider

Medical malpractice defense attorneys must also be aware of the potential overlap between malpractice claims and mass tort claims. When possible, malpractice defense attorneys will want to educate their clients regarding litigation involving drugs or devices that their clients may be prescribing or using on patients. The more information provided to a doctor about potential defects involving drugs or devices and pending litigation regarding those drugs or devices, the better the opportunity for the doctor to avoid becoming a target of a malpractice claim. Additionally, if a claim for malpractice is brought against a doctor arising out of the use of a drug or device, the defense attorney must be aware of any mass tort litigation involving the drug or device to fully defend their clients.

Attorneys representing treating physicians must also be prepared to address the patients' concerns regarding the treatment rendered by the doctor. The attorney will likely not have direct contact with the patient, but if the attorney is able to provide the doctor with information about the mass tort litigation and the basis of the claim, the doctor will be better able to communicate with the patient about the treatment.

Conclusion

Medical malpractice claims and mass tort claims do not always overlap, but when there is the potential for both, attorneys representing all parties involved must be cognizant of the two claims. Ignoring one claim or another could result in malpractice, tactical errors, or a failure to litigate the claim to its fullest. Being aware of the potential for overlap will allow an attorney to ask the right questions of their clients and conduct effective research regarding the relevant issues. Attorneys who are informed regarding these issues will be in a better position to represent their clients and protect their interests.

Jonathan B. Acklen is an attorney with the law firm of Fine and Staud, LLP in Philadelphia. He focuses his practice on seriously injured individuals in medical malpractice, product liability, and other negligence claims as well as medical device and pharmaceutical mass tort claims. He can be contacted at [email protected].