It is important to approach every potential lawsuit with the right mindset from early on, even before you receive notice of a claim, says Keith Felty, JD, managing partner at Sullivan, Ward, Patton, Gleeson & Felty in Southfield, MI.
Felty highlights some of the biggest pitfalls in handling malpractice claims:
• Failing to approach every claim as an eventual trial upon first notice of a possible claim. The prospect of going to trial should guide everything as soon as something goes wrong. Do not wait until an attorney mails an initial notice. Answering what jurors would want if they were in the patient’s position is the way to win cases and settle claims for less, Felty says.
“Empathetic response from doctors and nurses when the event occurs is crucial from the first moment,” Felty says. “Showing that medical folks care is the No. 1 loss prevention advice. In other words, the standard of care evaluation starts before there ever is a claim.”
• No communication among doctors. Time and again, jurors and other objective observers state that doctors not contacting each other or engaging each other for the patient’s best interests causes adverse verdicts and bigger settlements, Felty says.
• Not hiring counsel who actually try lawsuits. Whether a trial is really desired or whether you want to settle for less money, the threat of counsel who will actually try the case is the most important factor for getting the best result, Felty says.
• Focusing on the quantity of documentation of events rather than the quality. Lawsuits may be avoided with good records that document discussions with the patient, Felty says. Also document the discussions among doctors. Both are highly important in defending claims, he explains.
Chanel A. Mosley, JD, shareholder at Marshall Dennehey Warner Coleman & Goggin in Orlando, offers this list of reminders for handling a medical malpractice claim:
• Do not delay. Timing is key. Some states, like Florida, mandate presuit screening requirements that must be followed before a lawsuit can be filed. Upon receiving a notice of potential medical negligence, it is imperative to involve defense counsel immediately. Doing so ensures presuit discovery requests, investigation deadlines, and early evaluation of the claim can be conducted in a timely manner.
“Delays in complying with these statutory requirements can result in sanctions such as an award of attorney’s fees and costs against the party engaging in dilatory behavior, as well as the striking of pleadings and defenses. I recently resolved a claim that was transferred to me after the prior defense counsel delayed participation in the presuit investigation process,” Mosley explains. “As a result of the delays, the defendant physician was facing sanctions in the form of striking his defenses, essentially forcing him to admit liability in an otherwise defensible claim. The physician was forced to settle the case for a much larger amount than preferred in order to avoid the possibility of sanctions.”
• Do not sacrifice early expert assessment of the claim to conserve litigation spend. Medical negligence cases often come down to a battle of the experts. Knowing the strengths and weaknesses of your case early on can save money in the long run. Once you know the critical issues in your case, retain the proper experts to evaluate your liability exposure. Know where your exposure lies and work closely with your experts to formulate your defense strategy early on.
“While expert retention can be costly, it is important to have a thorough understanding of the medical issues impacting your case. This knowledge can be invaluable during the initial stages of discovery and in depositions. A well-planned deposition can ultimately result in a more favorable settlement for the medical provider,” she says. “Since most cases settle at mediation or during negotiations prior to trial, it is important to ensure that you have a strong, organized defense theory going into those settlement discussions. This allows you to position yourself for a better settlement.”
• Do not wait to meet with your witnesses. The statute of limitations often allows for a claimant to bring a medical negligence lawsuit several years after the alleged negligence occurred. The litigation process itself can be lengthy, spanning several more years. Turnover in the healthcare setting can be frequent, and individual memories can fade quickly.
“As soon as you receive notice of a claim, work with defense counsel to reach out to your witnesses and meet with them. Interview them about their recollection of the events and preserve as much information as possible,” Mosley says. “Waiting too long can result in the loss of invaluable information and the loss of a key witness who could make or break your case.”
• Do not underestimate the importance of witness preparation. Healthcare providers possess an innate sense of compassion, and by nature aim to please others. While this is an excellent quality in healthcare, it can be disastrous in litigation, Mosley says. A deposition or trial is an unnatural environment for most healthcare providers, and can be overwhelming and intimidating.
“For example, some healthcare providers have a tendency to be more passive or deferential at times, particularly when dealing with a difficult patient or family member. However, those qualities are less than desirable in a litigation setting,” Mosley says. “Don’t just rehearse important questions and answers. Work closely with your witnesses to ease any anxiety or nervousness about testifying and prepare them for what to expect during the deposition or trial. Offer tips on how to manage difficult questions and educate them on how best to approach certain topics with confidence and competence.”
If the opposing attorney is known to be particularly difficult, prepare them in advance to avoid your witness crumbling in the middle of the deposition, Mosley advises. A firm, confident healthcare provider is far more likely to present as a credible witness than a passive, deferential, timid one, she says.
• Communicate often with counsel. A collaborative approach between risk management and defense counsel is imperative and ensures a cohesive, well-planned defense strategy.
• Implement a litigation hold and follow through. “I cannot stress enough the importance of ensuring key evidence is preserved and properly maintained from the moment there is the prospect of a claim, and at the very least, when notice of the claim is received,” Mosley says. “A thorough search for all medical records, emails, text messages, and any other evidence involving the individuals and events which form the basis for the claim should be conducted immediately. All information uncovered should be preserved for the duration of the litigation.”
Involve your defense counsel in this process, too, Mosley says. Counsel can provide guidance and assistance on obtaining and collecting key pieces of evidence and information from important witnesses before the information is misplaced — or worse, lost or destroyed. Additionally, attorney/client and work product privileges may attach, which can help preserve the confidentiality of the investigation. Failure to preserve and maintain evidence can expose one to spoliation of evidence claims or sanctions down the road.
• Know the opposition and conduct research. In the world of social media and fast-paced online technology, research your claimant. Conduct social media sweeps, obtain surveillance, look for an online presence, and investigate background information. These data sources can be a gold mine of information that can drastically reduce the value of a case if something untoward or contradictory is discovered about the claimant, Mosley says.
“Research your opposition’s experts and utilize negative or contradictory information for impeachment. A successful cross examination of the plaintiff’s experts has the ability to obliterate their entire case,” she says. “Research your jury pool, your judge, and your opposing counsel. An extensive, thorough evaluation of your opposition and venue can have a significant impact on the manner in which you litigate the claim, and the level of success you achieve in resolving it.”