From The 'Lectric Law Library's Stacks What Attorneys Should Avoid when Handling MEDICAL MALPRACTICE Cases - by Seymour N. Herschberg, M.D., F.A.C.P. & Joe Gentile *
"I understand small business growth. I was one."
After twenty years of providing the services of medical experts to attorneys engaged in medical malpractice litigation, we take this opportunity to offer some advice by pointing out errors made by both defense and plaintiff attorneys.
Too often a plaintiff's attorney moves ahead with the presumption of validity of the client's case. The defense attorney must naturally act on the premise that the case needs to be defended to the utmost. Both attorneys then proceed to obtain various records and may even proceed to depositions without adequate understanding of the issues. Each or both attorneys may review the medical records and choose to focus on or highlight some portions without an appropriate understanding of the matter. For this reason, we recommend early consultation.
Although not a major problem, an attorney may obtain excessive records. It's appropriate to obtain old records in some situations to determine if some pre-existing condition, procedure or therapy has a relation to the present injury. The plaintiff's attorney will want to know because such information may make the case untenable. The defense attorney will want to know because that information will be critical should the patient persist in pushing the claim.
However, there are situations in which there are voluminous records of care after the care alleged to be negligent. These often have limited value to a medical expert seeking to ascertain whether or not a given standard of care was met at an earlier point in time. Often a summary will suffice.
Very often the rendered photocopies are poorly legible for a number of reasons. The handwriting of many individuals, physicians and others is very difficult or nearly impossible to read. The attorney and his office staff should first screen such documents for legibility before sending them to an expert who can waste valuable time in trying to decipher such records. Whenever this occurs, the attorney should insist on the provider of the records making typed transcripts of pertinent pages.
Often photocopies are barely legible, or so poorly centered that portions of the originals are not reproduced. Sometimes when photocopies of laboratory data are provided, there is an overlapping of sheets so that only the topmost one is totally uncovered. Again the attorney or someone on his staff should look for this and insist on proper and legible copies from the provider. If an attorney is not sure of the legibility of a document, he should always apprise the expert of possible difficulty and caution him to request better copies of specific problem pages if necessary.
Another problem that may occur during copying or office handling, is pages missing, out of order, or multiply duplicated. Good organization of material before submission to an expert is a must.
It is very convenient to submit records in a loose leaf binder with sections identified by dividers. Be alert that punching holes in paper may obliterate important data.
We have had many experts tell us after a deposition or trial appearance, that attorneys on both direct and cross examination frequently do not ask the right and pertinent questions. It is highly recommended that attorneys spend sufficient time with an expert before he testifies, and ask questions in rehearsal when an expert has an opportunity to suggest more appropriate variations of a question.
Both plaintiff and defense attorneys often seek out "ivory tower" experts Often this is a great idea when the goal is to have an expert of equal status to the opponent's expert, but at other times such an expert may lack the needed perspective of community clinical reality. A related error is to choose a subspecialist to evaluate or judge the performance of a generalist. Although there are basic minimum standards for even a generalist, the subspecialist may apply standards which a generalist would not normally be expected to know. In selecting an expert, a plaintiff's attorney would be well advised to use someone at the same level as the potential defendant. The defense attorney should do the same.
Face it, medical malpractice litigation is time consuming and expensive. To excel in this area is not to stint on experts. Successful handling of a case may require more than one expert. Most frequently one for causation and another for damages. Or one expert, a big leaguer for the national standard of care and another for a more local standard.
This error is solely the province of plaintiffs' attorneys. Once again, successful handling of medical malpractice claims is time consuming and expensive. Look at the damages and possible returns if successful. If there's no realistic expectation of a substantial settlement or verdict, there's usually small likelihood of a nuisance settlement as opposed to run of the mill personal injury litigation.
Nurses, Non-specialist physicians, medical librarians and other para/medical persons may be helpful in assisting an attorney in the earliest stages of a case simply by reading a chart and preparing a time line of events, digging out pertinent medical literature, stating medical facts in clear relatively non-technical language, and recommending the type of medical specialist needed for successful handling of the case. However, we believe it's a mistake to rely on persons like this for anything further. There can be no substitute for early consultation with an actual board certified specialist who practices in the field under consideration.
We've seen plaintiff attorneys build their cases on non-practicing physicians who need the income from malpractice work. A physician of this type will often say whatever he thinks the attorney wants to hear. This will eventually lead to disaster when the case comes to trial and the defense comes up with witnesses with impeccable credentials who will devastate what the plaintiff's expert says.
Defense attorneys have also been known to rely on what we call Defenders of the Profession, physicians who believe that every case must be defended at all costs because of previous poor experience with the legal system and insurance industry. These physicians can be discredited just as well.
* Dr. Herschberg is Medical Director of a HMO. His expertise covers managed care, geriatrics, medical administration, long term and intensive care. He's available for consultation and will serve as an expert witness when appropriate. Joe Gentile is President of Technical Assistance Bureau, provider of the above work.