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Excerpted from Medical Malpractice, Third Edition, 25
by David M. Harney
Copyright 1993, The Michie Company, 1-800-446-3410
All rights reserved. Personal use only. No distribution or republication without prior permission from the publisher.

Selecting defendants.

The handling of a medical malpractice case is unique in the practice of law. Although there is some kinship to cases involving legal malpractice, architectural malpractice, accountancy malpractice and even products liability (sometimes called "manufacturer's malpractice"), in medical malpractice, often there is a vast array of players in the act. The talents of these players can vary considerably. In what appears at first to be surgical malpractice, one may find that the surgeon was in fact brilliant, and it was the anesthesiologist who was incompetent. In the next case there may be an incompetent surgeon and a brilliant anesthesiologist. Nurses, of course, also vary in ability, from a scale of "minus one" to "plus ten."

An important step in screening a medical malpractice case is to check the credentials of the health care providers who might become defendants in the lawsuit. More that fifty percent of the medical practitioners in the United States are board certified. This means that they have taken approved postgraduate training and have passed an examination required by the particular specialty board. When a physician holds himself or herself out as a specialist, in most cases it is safe to assume that he or she is board certified and has acquired the training and skills ordinarily possessed by physicians in good standing in the community who practice the same specialty. But when a nonboard certified physician holds himself or herself out as a specialist in a particular field, there is a strong inference that that physician does not possess the training and skills that should be possessed for that field, and if that physician is involved in an "untoward event," lack of training and skill just may be the cause.

Some hospitals grant staff memberships to board certified specialists only, and usually such hospitals have a good reputation in the community and within the medical profession. Hospitals with willynilly policies on granting staff memberships ordinarily do not have a good reputation, and if there is an untoward event, it might be explained by this laxity in credentialing.

In determining who should be made a defendant, it should be borne in mind that any physician or other party, including hospital personnel, who has contributed to the client's injury should be joined as a party to the lawsuit. At the same time, care should be exercised to not unnecessarily join an individual if he is innocent of wrongdoing, and if he has not participated in a conspiracy to protect the actual wrongdoer. Collateral, remote, and innocent persons should not be subjected to a lawsuit.

I do not rule out a defendant merely because he or she does not have malpractice insurance. I will still go after them. Personally, I believe it is immoral for a physician to be in a position to injure someone and not be able to pay the damages. I had a case in which I represented a lady who awoke from anesthesia to find her plastic surgeon fondling her. The surgeon, who had also performed the operation poorly, had no malpractice insurance. We won a $500,000 verdict and collected $350,000 of it from the defendant by forcing the sale of his office building and home.

On the other hand, in evaluating your defendants, be on guard for the Marcus Welby type of personality. Some doctors, and even some hospital administrators, have such a forthright and wholesome appearance that jurors will not believe that they can be capable of wrongdoing. And, of course, the opposite is true: if you have an unattractive, "schlocky" defendant, you will have a lot going for you in a jury case.

In cases in which there has been a serious drug reaction, it is often necessary to join the drug manufacturer as a party defendant. (See Section 25.11 herein.) Attorneys who expect to handle medical malpractice matters should subscribe to and keep current the Physicians' Desk Reference (PDR), published by Medical Economics Company of Oradell, New Jersey. PDR is a compendium of most of the ethical drugs prescribed in the United States. Listings on these drugs in PDR include information on dosage, precautions, contraindications, side effects, and the like. Also, the manufacturer of the drug is identified.

In numerous cases, a physician will claim that a patient had an idiosyncratic reaction to the drug, but it may be that the physician prescribed an incorrect drug, or violated the manufacturer's recommendations regarding usage or dosage of the drug. Also, the manufacturer may have failed to warn of certain hazards of the drug, or misrepresented its effectiveness.

Should a drug manufacturer, the maker of a medical or surgical device, or the manufacturer of surgical or hospital equipment, be made a party defendant to the lawsuit, theories of strict liability in tort, specific acts of negligence, and breach of warranty must all be considered.

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