April 22nd, 2009

Susan Boyle’s Voice, and the Lessons for Trial Attorneys

If you haven’t heard of unemployed, 47-year old Susan Boyle taking the stage in a British talent shows and blowing the doors off the joint by now, you’ve probably been living under a rock. The expectations were as low as can be for the rather plain (some say homely) looking woman who, it turns out, had the voice of an angel. (Video here)

And there is the lesson for trial lawyers. One considerable reason for her stunning story was that the expectations were set so low. If she had been a pretty blond taking the stage, it would not have been the same. She would still have a nice voice, but would she have become an international human interest story? Of course not.

And of course that isn’t fair. But people judge others on appearances all the time, and that doesn’t change when we become jurors.

How does a trial lawyer use that bit of knowledge? By raising the expectations for the other side’s witnesses and lowering them for your own. Let the jury be surprised and their expectations exceeded for your own. Let them be disappointed by the adversary.

Two years ago I wrote about the problems of well-educated, attractive adversaries in One Way to Cross-Examine The Attractive Doctor, and discussed how to approach the issue before that witness takes the stand in the medical malpractice setting:

The answer is not to knock them down, but to build them up in opening statements and jury selection (if your jurisdiction allows).

Tell the jury they will like the defendant. After all, your client chose this doctor for surgery, right? Trusted him/her. Kinda like Marcus Welby. Therefore, it stands to reason, the jury will too.

This does a few things: First, you have been dead honest. It is unlikely the jury expected you to “confess” this thing, but frankly, they will likely see it anyway if defense counsel is even mildly competent. Trying to tar a physician at the outset that your client previously trusted has enormous potential to backfire.

The jury also now has very high expectations for the doctor. With the bar set so high, any slip-up or contradictory testimony is likely to be viewed in a harsher light. Assuming you have a solid case to take to trial, this doctor-defendant will also lay out the standards of care (while they still trust him/her) before being confronted with the deviations from care, the sloppy notes, the rushed surgery, failure to read the x-ray, or contradictions from deposition testimony.

And the reverse may also be true, as Ms. Boyle demonstrates. Instead of building your own clients up, you can compare them to their adversaries, and warn the jury that the nice doctor on the other side, for instance, might have much higher education and more practice speaking in front of others, and caution jurors not to judge your client on looks or awkwardness. This gently lowers the bar without hurting your clients or unfairly disparaging the other side and, like Ms. Boyle, makes it easier for them to be liked by the jury. (Assuming this scenario is appropriate for the case, of course.)

I’d love to say that trying a case is all about the facts and only the facts. But appearances sadly mar the way for many. And this is one way to level that playing field.

Links to this post:

susan boyle in the eye of the beholder
susan boyle 3450613461_c067eb4ee2_m you’ve seen it, right? tens of millions of people have. it’s the video of plain, middle-aged susan boyle, stunning the “britain’s got talent” judges and then the world with her lovely voice. …

posted by Anne Reed @ April 23, 2009 11:11 PM

June 7th, 2007

Medical Malpractice – A Response To Many Questions

In the comments of this post, MD/PhD Student raised many different medical-legal issues. My response grew so long, I decided to give it its own post:

…I see med-mal as a reason why medical costs are rapidly increasing. Malpractice insurance premiums, while obscene, are not the biggest factor in this increase. Instead, from what I have seen and been told by physicians, unnecessary (and extremely expensive) tests are routinely ordered to cover the one-in-a-million possibility of disease so that doctors can more successfully defend themselves if sued.

As a general practice, premiums go up when the stock market goes down and vice versa. Insurance companies make their money there. Try this link: Medical Malpractice Insurers Price-Gouged Doctors During This Decade as well as the links at the end of that post.

One reason that doctors feel the need to practice CYA medicine (and the reason that many bloggers have speculated Flea settled the case) is the perception that juries are easily swayed by charismatic lawyers and sympathetic patients and are reputed to ignore science and medicine when making decisions.

Research actually says otherwise, that jurors give doctors the benefit of the doubt more often than other defendants: Juries and Doctors: Not What You Think and Doctors and Juries.

While tort reform is an idea I strongly support, might there not be another way to mitigate frivolous lawsuits and unconscionably large awards (and in so doing, reduce the cost of malpractice insurance and CYA medicine)?

Two more links for you:
The Myth of Frivolous Litigation and How New York Caps Personal Injury Damages

What would your opinion be on have something like a “medical court” where grievances can be brought to be heard by a panel of judges and physicians who are more likely to be swayed by actual facts and true damages than emotional appeals and theatrics?

See: Health Court Legislation Again Introduced To Congress

May 22nd, 2007

Medical Malpractice – Vetting The Case

About 95-98% of medical malpractice inquiries to my office are rejected. Having previously discussed medical malpractice law and the economics of bringing such an action, mostly for the med-bloggers and tort “reformers” who tune in to this station, let’s turn to the decision-making process for a short step-by-step. Remember that, since the case will not settle easily, and the painful economics of the contingency fee punish you harshly for picking poorly, the case better be strong. And one can safely assume that, as Ronald Miller points out at the Maryland Injury Lawyer Blog, the doctor or hospital will not admit an error.

1. The Phone Call: Most inquiries don’t make it past this stage. Often, the complaint is of a bad result, discourteous conduct that leads to suspicions, or a plain old failure to understand what happened. This can be related to bad bedside manner, or an individual that unexpectedly finds himself listening to complicated medicine while in a state of high anxiety and distress. The potential client often doesn’t know how, if at all, the doctor departed from accepted medical practice. (When the call is made by another attorney seeking to forward the case on to me, the rejection rate is lower since s/he has already done a vetting process.)

2. The Interview: You find out more in person than by phone. Some people already have records or portions of records that help to reconstruct what happened. Friends and relatives may have bits and pieces of information that help. The reliability of the potential client(s) can also be evaluated.

3. The Record Review: This is often the first real expenditure, so you have to have a pretty good idea that the matter is worth pursuing. In New York, you’ll be hit for 75 cents a page, and the page totals can be daunting for substantial injuries. Then comes the hours of review. Assuming the matter still warrants attention after these three steps, we go to the expert(s).

4. The Expert Review: There is no case without an expert, unless you have a rare res ipsa case. And your expert has to be good, or s/he will get chewed up during a trial. If you hire an expert that is, shall we say, flexible with the standards of care and willing to go the extra mile for you, you will likely find yourself bankrupt. Bad cases don’t settle. About 70% of malpractice cases are lost at trial, and juries don’t like to bring back verdicts against doctors. The expert who reviews a bad case and tells you “no” is helping you while the expert that tells you “yes” might inadvertently be hurting you. Choose wisely.

5. The Other Expert Review: Remember that the negligence must be a substantial cause of the injuries. It doesn’t help you to win the liability phase of the trial if there is no causation. While an internist might be able to testify on the breast lump that should have been biopsied, it is the oncologist that you need for discussion of whether the length of the delay in treatment was significant. There is a good chance you need multiple experts, just to decide if a case should be brought.

This process, a form of which exists in any law office that takes such cases on a regular basis, results in substantially weeding out the bad claims.

Finally — and this is not an issue often discussed — those that advocate dismembering the malpractice system and replacing it with some type of no-fault or other system with lower barriers fail to realize that it would result in an absolute flood of matters pouring in, significantly eclipsing that which now exists. But that, I suppose, is a question for another day.

April 25th, 2007

Medical Malpractice Economics

Two weeks ago I wrote Medical Malpractice – A Primer, directed toward members of the medical community due to a recurring theme I saw on medical blogs: The idea that such suits are brought cavalierly. (You can this in the comments section of blogs such as Flea, GruntDoc, and Kevin, M.D.)

I promised a follow-up on how cases are selected by a plaintiff’s attorney, but first want to deconstruct the time and money needed if the matter is taken. For only by understanding the time and money risks can one appreciate the importance of careful screening for potential litigation.

Though all cases are different, let’s assume this simple fact pattern: A 10 month delay in diagnosing and treating breast cancer in a 50 year old woman with a husband and two kids, one of whom is a minor. Her cancer has now spread to two lymph nodes. She has a part time business. All parties and witnesses are local.

The following time and money costs must be assumed to take such a case to verdict:

Obtain all medical records of any kind for her;
Expert review on the issue of negligence (perhaps a radiologist or OBGYN, depending on the facts of why the cancer was allegedly missed) prior to taking the matter, intermittent reviews as needed during litigation, and a day in court for trial;
Expert review on the issue of causation and damages (likely an oncologist), and a day in court for trial;
Expert review on the issue of lost wages or household services (economist or vocational economist) and a day in court for trial;
Cost of depositions (doctors, nurses and other witnesses);
Possible videotaping of depositions for those who may not be present for trial;
Daily copy of transcripts from trial;
The purchase or creation of demonstrative evidence to explain the medicine, facts of the incident or injuries to the jury. This could be anything from enlargements of documents and x-rays, to medical models, custom illustrations or video footage, as warranted; and
Due to personal circumstances of the sick woman and her family, they can’t pay the out-of-pocket costs.

Since the case will always be thrown out without an expert (with the exception of the rare res ipsa case, such as the retained clamp above), the liability and causation experts are not optional.

The attorney’s time involved for litigating the case for a few years will entail record reviews, expert discussions, document drafting, depositions (and prep), possible motion practice, and 5-10 court conferences. It will probably be a two week trial if all goes very smoothly — but depends on the judge’s schedule, the schedules of the experts on both sides, and the longwindedness of the attorneys — and can very easily go longer. It will, in sum, likely be several hundred hours, though it could be more. The opposing attorneys will be top-notch medical malpractice litigators because the insurance companies don’t hire a jack-of-all-trades for this sort of thing.

The out of pocket costs will easily be $30,000 — $50,000, and quite possibly higher depending on the particulars of the case.

If the case is lost at trial — perhaps because of a defense expert who “goes the extra yard” for a fellow physician, a plaintiff less attractive than the defendant doctor, “bad facts” you didn’t know about at intake, a tendency for juries to favor doctors, an unexpected scheduling problem that prevents a witness from appearing, or a plain old dispute as to the standard of care — your money and time should all be assumed to be gone. It is unlikely you will recoup the disbursements from the client. You still have to pay the rent, personnel, utilities, computers and other costs of running a business.

One should never assume that the case will settle, of course, but if it does it will probably only be after you have prepared for, or even started, the actual trial. (See: No, your medical malpractice case will NOT settle fast.)

If you win and get paid back your disbursements and receive a fee, it will still likely take a few years. (You may want it to go quicker, but defendants do not, and the court may not be able to.)

From a cash flow standpoint, this is not an attractive business model. And in New York, those fees if you are successful start at 30% and slide down to 10% as the recovery increases. And if another attorney did some work on the file and then forwarded it on to you, you will be sharing that fee with others.

This, of course, assumes no appeals. If the trial court or appellate thinks the verdict is too high, it will be thrown out. (see, How New York Caps Personal Injury Damages)

In short, the economics from a business standpoint are quite poor, which is why case selection becomes so important for the careful practitioner. It is also why the average malpractice recovery is so high, since the medical community enjoys de facto immunity for smaller cases based on these economics.

To call this a high-risk endeavor would be a significant understatement. The vetting process for such a case is therefore critical, and will be the subject of a future blog posting. [This link added 5/22/07]

April 11th, 2007

Medical Malpractice — A Primer

I’ve been reading a lot of medical blogs lately, and medical professionals have been reading mine. And as many doctors have ranted about attorneys (such as those in the comments at Kevin, M.D. and Flea) I’ve noticed a lack of some basic legal principles on the subject of medical malpractice. Many think that any bad result brings on a lawsuit.

Since those misunderstandings no doubt contributed to the rants, this posting serves as a basic primer on the subject. It is based on New York law, but there’s a pretty good chance your own state is similar.

We start with the definition of negligence. (Which I like to define by example: backing out of the driveway without looking.) Here’s the court’s more formal definition that will be given to the jury:

Negligence is lack of ordinary care. It is a failure to use that degree of care that a reasonably prudent person would have used under the same circumstances. Negligence may arise from doing an act that a reasonably prudent person would not have done under the same circumstances, or, on the other hand, from failing to do an act that a reasonably prudent person would have done under the same circumstances.

From there, the court discusses medical negligence. Note the part I placed in bold:

Malpractice is professional negligence and medical malpractice is the negligence of a doctor. Negligence is the failure to use reasonable care under the circumstances, doing something that a reasonably prudent doctor would not do under the circumstances, or failing to do something that a reasonably prudent doctor would do under the circumstances. It is a deviation or departure from accepted practice.

That part in bold is important so as to contrast with what is not malpractice:

By undertaking to perform a medical service, a doctor does not guarantee a good result. The fact that there was a bad result to the patient, by itself, does not make the doctor liable. Doctors are liable only if they are negligent. Whether a doctor was negligent is to be decided on the basis of the facts and conditions existing at the time of the claimed negligence.

Doctors are not liable for errors in judgment if they decide, after careful evaluation, if it is a judgment that a reasonably prudent doctor could have made under the circumstances. If the doctor is negligent, that is, lacks the skill or knowledge required of him or her in providing a medical service, or fails to use reasonable care in providing the service, or fails to exercise his or her best judgment, and such failure is a substantial factor in causing harm to the patient, then the doctor is responsible for the injury or harm caused.

The issue of what constitutes a “deviation from accepted practice” and what constitutes a mere “error in judgment” often frame the testimony and arguments of a trial. The error of judgment defense is so critical that, even if an error was made due to inadvertence, the defense is likely to be that it was done on purpose. Thus, the defense will be that this was merely an error of judgment and the jury shouldn’t engage in Monday morning quarterbacking.

It is also important to note that doctors are not held to the highest standards of knowledge. The jury will be told:

The law recognizes that there are differences in the abilities of doctors, just as there are differences in the abilities of people engaged in other activities. To practice medicine a doctor is not required to have the extraordinary knowledge and ability that belongs to a few doctors of exceptional ability. However doctors are required to keep reasonably informed of new developments in their fields and to practice medicine in accordance with approved methods and means of treatment in general use. A doctor must also use his or her best judgment and whatever superior knowledge and skill he or she possesses, even if the knowledge and skill exceeds that possessed by the average doctor or specialist in the medical community where the doctor practices.

Thus, at any malpractice trial, the plaintiff-patient will have to prove these three things (for which an expert is required):

1. The standard of care is breached with a departure from customary and usual practice, and not a mere error of judgment;

2. That the departure was a substantial cause of injury to the patient;

3. That the injury was very substantial. While those words don’t exist as a legal threshold, they exist as a practical one. One can’t spend hundreds of hours and tens of thousands of dollars to prove a case where the damages don’t cover the time and money put forth. Since the cases are vigorously defended (see: No, Your medical malpractice case will NOT settle early), and defense malpractice attorneys form some of the elite of the trial bar, it would be rare for any attorney who knew what they were doing to take on a smaller case.

I hope to follow up with a post on how malpractice cases are screened and selected.

Addendum:

4/25/07 – Medical Malpractice Economics;
5/22/07 – Medical Malpractice – Vetting The Case