The Plain Truth About the Practice of Personal Injury Law

Wednesday, February 23, 2011

What does it take to win a Medical Malpractice case? “The Big Picture”

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Ask any Plaintiff's personal injury attorney which cases are the hardest to win and the universal answer will be medical malpractice. These cases include:

Medical Malpractice

From the moment the case begins, the attorney knows that he or she are in for a battle. When sued, medical doctors immediately fall into a state of denial if not righteous indignation. How could they possibly be responsible for a patient’s injury or death? Medical malpractice insurance companies further empower physicians by granting them the absolute right to have their case tried to verdict before a jury, no matter how egregious their conduct.

The plaintiffs’ attorney is also faced with the mandatory requirement of retaining a physician in the same specialty to testify against the defendant doctor. At one time this task was extremely difficult, especially on a local level,  as the testifying doctor feared retribution from the medical community and the malpractice insurance companies. In fact, for a period of time one major insurance company sent notices to its insured's "encouraging" (sic) them to not testify for plaintiffs’ in malpractice cases.  However, as doctors incomes have continued to decline due to lower PPO and Medicare reimbursements, many have welcomed the opportunity to increase their incomes by testifying against their collogues as expert witnesses. These physicians charge plaintiffs’ attorneys from $5,000-$10,000 to review records sit for a deposition and testify at trial.

The typical defense in malpractice cases is that any and all mistakes have resulted from "a known complication". Taken to its extreme just about anything can be labeled "a know complication". Defense attorneys refer to medicine as an "art" which is not perfect. Using this logic the same can be said for the negligent operation of a motor vehicle which is never excused by the law.

My many years as a Chicago personal injury attorney has taught me that juries will give a doctor every benefit of the doubt before finding their conduct negligent and awarding a patient money damages. During the selection process prospective jurors are asked if both the plaintiff and defendant start out on equal footing before the case begins.  No matter what a juror may say the doctor has a clear edge over the plaintiff. The physician is typically placed on a pedestal representing the pinnacle of all professions.  This attitude is exacerbated by the medical lobby and their insurance companies flooding the media with the "cry" that, "there are too many lawsuits brought against doctors", that "doctors are being chased out of their state" and “there will be no one available to deliver babies”. Jurors are therefore brainwashed to believe these untruths.

Given the foregoing prevailing attitudes, I submit that unless a plaintiff's personal injury attorney can get a jury "mad" or upset at the doctor over their conduct in the case on trial the plaintiff will lose. This is true no matter how technically correct the plaintiff's position may be. Young, inexperienced plaintiffs’ medical malpractice attorneys forget who they are trying their case in front of and fall into the trap of asserting a technical position in an effort to win the case. If they use this tactic their case is doomed.  Jurors’ already brainwashed, lack the knowledge, patience and desire to absorb technical medical jargon. Defense attorneys’ spoon feed as much of this information as they can to confuse jurors into a verdict for the defendant doctor.  

The “Big Picture” is the only solution. Each side presents expert witnesses as required by applicable law. The witnesses offset each other’s testimony so who is the jury to believe? The plaintiff’s attorney must shift the argument away from both witnesses labeling them a legal necessity and win the case upon common sense, lay facts that can always be found in the medical records or non medical testimony.  Jurors can easily absorb this type of evidence, forget (as they will anyway) the technical medical testimony and side with the plaintiff. Examples of this technique include showing the jury that the doctor was too lazy or pompous to make a telephone call to the patient, hospital resident or even a nurse; that the doctor did not visit the patient in the hospital or went off on vacation; that the patient was left in the hands of an inexperienced intern or resident physician or the physician may have left the operating room prior to the completion of a surgical procedure.

Physicians often know that they have committed malpractice at a moment in time.  Their typical reflex reaction is to write a detailed “cover your ass” entry in the patients chart in an effort to absolve themselves of the mistake. This may be followed with yet another writing called a “post entry” note. The trial attorney must use these physicians “progress notes” to show the jury that the physician knew that he or she made the mistake and went to painstaking lengths to cover it up. What the physician actually wrote in the chart is of little import since they have shown a guilty state of mind. Discrediting their conduct is the goal. Get the jury mad at the doctor!

Inexperienced attorneys having watched too many television legal dramas will do everything possible to catch the doctor in an outright lie. Although this is certainly a desirable goal, a failed effort will inflame the jury against the plaintiff.  A better technique is to let the physician or their expert witness make incredible claims which are preposterous even to a lay person. Said another way, the doctors testimony on many critical issues may make perfect sense to a jury causing the plaintiffs’ case to suffer. If left alone at this stage the plaintiffs case may be lost.  Yet, my 35 years of medical malpractice experience has shown me that physicians do not know when to stop. After effectively hurting the plaintiffs’ case they come forward with a single self serving statement or opinion that is “over the top”. Once made, the physician has taken away all of the good will established with the jury and brought all of their testimony into question. The plaintiffs’ attorney must then argue this fact to the jury during closing argument, effectively taking that witness out of the case. Even though the doctor did not admit fault he might as well have done so.

Once the plaintiffs’ medical practice attorney abandons the “he said she said” technique and masters the art of selling the ” Big Picture” they will be on their way to successfully winning medical malpractice cases.

Rick Grossman

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