What Can Make a Patient's Lawsuit Just 'Go away?'

Be aggressive in your own defense

Inability to find an attorney who will take a malpractice case on a contingency fee basis. An inability to find an expert who can conclude to a reasonable degree of medical certainty that the ED physician breached the standard of care or proximately caused injury/death. Strong defense experts. Strong testimony from defendant physicians. Damaging admissions by the plaintiff's experts at deposition. A decision by the patient or family to resolve the matter now without going through the ordeal of a trial.

These are all factors that can stop a patient's lawsuit against an ED physician from going forward, says Joseph J. Feltes, JD, a partner with Buckingham, Doolittle & Burroughs in Canton, OH.

In addition, reforms in some states may make it more difficult for an ED patient to file a malpractice case. Barbara Pilo, JD, a counsel attorney in the litigation section of the Dallas office of Fulbright & Jaworski LLP, says that "post-2003 tort reform in Texas, some cases which might have been previously filed are no longer economically feasible to pursue. Court statistics from Dallas County, for example, demonstrate a significant drop in the number of medical liability cases filed in 2008, as compared to prior to the enactment of legislative reform."

Once the case is filed, however, Pilo says that a defendant conceivably could "play a particularly strong hand" by retaining an expert early and disclosing an expert's opinions prior to deadlines that might otherwise apply. "But in my experience, that is a relatively uncommon scenario," says Pilo. The downside to a voluntary disclosure is that a plaintiff will be undeterred, the case will persist and the sharing of information will only succeed in educating the plaintiff in how to better prepare their case.

"If liability in a case rested on an issue such as statute of limitations or absence of a physician/patient relationship, amenable to determination by motion for summary judgment, that might be another route to early disposition. But again, that is usually the exception, not the rule," says Pilo.

Texas practice now requires a plaintiff to file a written report from a qualified expert within a specified period of time after filing of the lawsuit. "If the statutory requirements are not met, this would be another possible avenue to an early motion to dismiss," says Pilo. "However, this procedure is specific to Texas law."

Be Aggressive from the Outset

Justin Greenfelder, JD, an associate attorney in Canton, OH-based Buckingham, Doolittle & Burroughs, adds that the ED physician and attorney should be aggressive in defending the case from the outset, including commencing discovery.

"Let the plaintiff's attorney know that he or she is in for a fight," says Greenfelder. "If there are a number of defendants, and the ED physician is not the target defendant, the plaintiff's attorney may dismiss the aggressive ED physician and focus instead on the other, more passive defendants."

Aggressive actions will primarily be the responsibility of the physician's attorney and may include quickly serving discovery requests, filing appropriate motions if there are defects in the pleadings or evidentiary issues arise, pushing for the scheduling of the plaintiff's deposition and taking the lead aggressively in those depositions, and posturing the case early on to effect an early dismissal of the physician.

If named in a lawsuit, cooperate with your attorney in all facets of the litigation. "This will increase the likelihood that the attorney can pick apart the plaintiff's claim," says Greenfelder. This means making yourself available to meet with your attorney within a week or two after suit has been filed to discuss the case, being available by phone when your attorney needs to speak to you, providing your chart to the attorney for early evaluation, giving feedback promptly, and being diligent in preparation for your deposition.

Since the ED physician's deposition is of utmost importance, he or she "should know the medical record back and forth," and practice the types of questions that are likely to be asked, says Greenfelder. "The plaintiff's attorney not only wants to know what the physician did, but also is sizing up how good a witness the physician will be. If the physician does well, that increases the likelihood that the suit may be dismissed against him or her. If he or she does poorly, expect to be in for the long haul."

With regard to retaining experts, defense attorneys usually prefer experts who do not know the defendant physician, so there can be no insinuation to the jury that the expert is biased, says Greenfelder. As a defendant, the ED physician may make recommendations for potential experts, but should leave the final decision to the judgment of the attorney, says Greenfelder, "who should pick an expert who not only is strong on the medicine, but who also is experienced in understanding the importance of testifying effectively in a deposition and before a jury."

Experts May Not Be Qualified

Carrie W. McCutcheon, JD, an attorney at Baker, Donelson, Bearman, Caldwell & Berkowitz, PC, in Nashville, TN, says that once a lawsuit has been filed, the provider should very quickly retain one or two excellent experts who can help to "shape the defense and the story of the care the ED physician provided."

"The expert will help show the standard of the care for the ED physician and how his or her responsibilities are different from those of a nurse, a radiologist, or another provider," she says.

McCutcheon says that the lack of a competent and qualified expert can doom a patient's case. For example, under Tennessee statute, an expert must have been licensed to practice in the state or in a contiguous bordering state in a profession or specialty that would make the person's testimony relevant to the issues in the case. Also, the expert has to have practiced this profession or specialty in Tennessee or a bordering state during the year preceding the date that the alleged injury or wrongful act occurred.

Therefore, for example, if the only expert a plaintiff could produce was someone licensed and practicing in South Dakota, that expert would not be qualified to testify. Similarly, if the expert is licensed and practicing in Tennessee, but is a nurse and is offering opinion testimony against an ED physician, the expert would not be qualified to testify. Nor would an expert who was licensed and practicing in Tennessee or a contiguous state for only six months before the date of injury.

Should You Move for Sanctions?

If a lawsuit doesn't go forward because it's baseless, Feltes says to resist the urge to try to file a counterclaim for malicious prosecution or a related theory. "These are tough to prove and complicate the suit," he says.

While many states have statutes in place that permit a defendant to move for sanctions against a plaintiff and/or his attorney if the litigation proves to be frivolous, Feltes says "this is a difficult burden to meet. Courts are often reluctant to sanction plaintiffs or their attorneys in malpractice cases."

Another alternative is Civil Rule 11, a version of which all states have enacted, which permits a court to sanction an attorney for filing a document without a good faith basis.

"Again, such sanctions are rarely granted," says Feltes. "A third option would be a countersuit for abuse of process or malicious prosecution. However, these claims are rarely successful, given the high burden of proof and difficulty in penetrating the attorney's mental thought processes."

Pilo says that an ED physician's ability to recoup expenses after prevailing in a medical negligence action would be determined under state law, and attorneys' fees are not generally not recoverable on a negligence cause of action. "If a case is tried to verdict and the defendant physician prevails, the defendant normally would be entitled to recover amounts which were properly taxable as court costs," says Pilo. "These would typically include filing fees and deposition transcript expenses, which would invariably be far less than the total cost of defense."

Sources

For more information, contact:

• Joseph J. Feltes, JD, Buckingham, Doolittle & Burroughs, Canton, OH. Phone: (330) 491-5225. Fax: (330) 252-5225. E-mail: JFeltes@BDBLAW.com.

• Carrie W. McCutcheon, JD, Baker, Donelson, Bearman, Caldwell & Berkowitz, PC, Nashville, TN. Phone: (615) 726-5631. Fax: (615) 744-5631. E-Mail: cmccutcheon@bakerdonelson.com

• Barbara Pilo, JD, Counsel, Fulbright & Jaworski LLP, Dallas, TX. Phone: (214) 855-8044. Fax: (214) 855-8200. E-mail: bpilo@fulbright.com.