EXECUTIVE SUMMARY

How sympathetic parties to a lawsuit are can influence the outcome of ED malpractice litigation. If faced with an affable plaintiff, the defense can:

  • express sympathy in opening and closing statements;
  • remind the jury that verdicts cannot be based on sympathy;
  • remain polite and professional.

Every ED lawsuit involves an important, intangible factor: the “likeability” of the plaintiff and the defendant. In malpractice litigation, “sympathetic or unsympathetic parties are extremely important, just like a candidate’s personal appeal is important in politics,” says Michael M. Wilson, MD, JD, a Washington, DC-based healthcare attorney.

Even if a case against an EP is technically strong, it can prove unwinnable if the plaintiff is unsympathetic. The same is true if the EP is charismatic. Recently, a particularly strong malpractice case ended up with a defense verdict.

“The defendant physician testified, and the jury obviously liked him,” Wilson reports. During opening and closing statements, defense counsel can make it clear they sympathize with the patient. Concurrently, counsel can remind jurors that their verdict cannot be based on sympathy. The best approach, says Ashley Dobbin Calkins, JD, is to “remain polite and professional and avoid personal digs against anyone.”

For instance, a defense attorney might say, “There is no doubt Ms. Jones is a kind woman and loving mother. That is not the question for you to consider. Instead, your job is to consider the evidence, and apply the law as the judge instructs you.”

“Treating the plaintiff and his or her family very respectfully makes an attorney seem more sincere when asking the jury not to rely on sympathy in rendering a verdict,” says Calkins, an attorney in the Richmond, VA, office of Hancock Daniel.

Likewise, expert witnesses are more effective if they treat opposing parties with compassion, according to Ken Zafren, MD, FAAEM, FACEP, FAWM, clinical professor in the department of emergency medicine at Stanford University Medical Center. “For a defendant’s expert, this could include acknowledging the suffering, disability, or death of a patient, and the suffering of the patient’s loved ones,” Zafren says.

A plaintiff’s expert can note that the defendant EP is not necessarily incompetent or heartless, but nevertheless, made a mistake that harmed a patient. “It is counterproductive to minimize a patient’s outcome or to vilify a caregiver,” Zafren says.

The defense attorney may be tempted to blame a patient who did not follow instructions. Some plaintiff attorneys imply that the EP did not really care what happened to the patient. Such statements can backfire easily. “Unkind or snide remarks against either side can be poorly received by the jury,” Calkins warns.

A case with a terrible outcome naturally engenders sympathy for the plaintiff. To counter this, the defense “has to show that the EP truly cared about the patient, and took actions to try to avoid the bad result from happening,” Wilson explains.

Some ED cases include facts that are so bad, and an EP defendant that is so unsympathetic, that the case cannot be defended. “The best course of action is to settle the case before depositions are conducted that could cause the physician to have licensure problems,” Wilson recommends.

Because of soaring expenses, caps on verdicts, and legal hurdles such as prefiling requirements, “most medical cases being filed now involve catastrophic, or at least severe, permanent injuries,” Wilson observes.

The defense team cannot simply ignore the plaintiff’s catastrophic injuries, such as permanent blindness, brain damage, or paralysis. These need to be acknowledged sensitively. “However, the defense team can show, through expert testimony, that the injury frequently is known to occur despite the best care,” Wilson says.

A likable plaintiff with a terrible outcome is a difficult case to defend. That does not necessarily mean settlement. “In my experience, virtually every case has a sympathetic plaintiff,” Calkins reports.

There may be other reasons to consider settlement. Difficulty obtaining solid support from expert witnesses or a truly catastrophic injury are among these. In such cases, says Calkins, “an extremely sympathetic plaintiff can factor into negotiations, and could even impact the settlement amount.”