More than a year passed between the deposition and any talk of a trial. Many times during that year, I felt like giving up, just settle the case and get the whole ordeal behind me. Vinny told me more than once that litigation often becomes a war of attrition – whomever gives up first is the loser. That helped keep my head in the game. I was determined to show everyone that the care I provided was appropriate.
The plaintiff’s attorney repeatedly told Vinny that he “wasn’t focusing on my care.” In fact, even the plaintiff’s expert stated that everything I did was reasonable. The only issue that the expert had with my care was that HE would have contacted a surgeon earlier in the patient’s course. That’s great that he would contact a surgeon sooner knowing the patient’s ultimate diagnosis and sitting in his living room somewhere sucking down a cold one as he flipped through the chart. Things are a little different when it’s real-time, you have eight other patients, you don’t know the diagnosis, and you’re doing what you can to save someone’s life.
The plaintiff also had another paid consultant who made all kinds of outlandish claims against everyone, but he’s a general surgeon who said that the last time he practiced emergency medicine was 30 years ago. Got news for ya, there Aesculapius, emergency medicine was hardly even a specialty 30 years ago. I’ll let Vinny drop that bomb on you during trial, though. This expert had testified in more states than I’ve ever visited. I heard one attorney in Vinny’s firm refer to the expert’s statements as “testilying.”
While I was frustrated that the Grinch was keeping me in the case, I found myself looking forward to trial. I was actually excited to show everyone how I did the best job anyone could do to save this patient’s life. I know some people dread the thought of having 12 people staring at you while some attorneys and experts say great things about you one half of the time and while other attorneys and experts say horrible things about you the other half of the time. Me, I couldn’t wait.
I headed back to Vinny’s office about a week before trial to prepare for my trial testimony. Basically, Vinny wanted to go over all the things we talked about before my deposition.
“You have to memorize every damn word of that deposition,” he warned. “If you say something different from your deposition during trial, the plaintiff’s attorney will jump all over you and make you look like a fool. You’ll be painted as someone who changes his testimony and who can’t be trusted.” The legal term for that technique is “impeachment.”
Vinny had developed a “theme” for the case. He encouraged me to mention the theme over and over during my testimony so that the jury would remember it once they went back to deliberate. Our theme was going to be “THINGS TAKE TIME.” We made the diagnosis, but it took a while for all the test results to come back. Things take time. Makes sense.
We would need to go through each test I ordered, why I ordered it, and how it contributed to the diagnosis. Since the major issue was whether or not there was a delay in obtaining a consult, we had to show that after each lab was ordered, it took time to get the results back. It wasn’t until all the tests were back that the diagnosis became more evident. We needed to hammer home the point that I was constantly acquiring data and that time was needed to retrieve the lab results and to refine the diagnosis.
Vinny told me to think about what the plaintiff was going to try to prove. That way I would know how he would prove me wrong . . . or at least TRY to prove me wrong. In most “failure to diagnose” cases, the physician is allegedly not smart enough to realize that a disease manifests itself in certain symptoms. For example, abdominal pain is usually seen in someone with primary sclerosing cholangitis. When a jury hears that statement, they might begin to think “if the patient had abdominal pain, why didn’t the doctor think of primary sclerosing cholantitis?” The problem is that the question smacks of retrospective bias. No one knew that the patient had primary sclerosing cholantitis when the patient walked into the hospital. So while abdominal pain may be “consistent with” primary sclerosing cholangitis, it is also a finding consistent with at least 740 other diseases as well. An example of a question that avoids retrospective bias might be “when a patient comes in with abdominal pain, what diseases should be in the physician’s differential diagnosis?” Even that question is too broad. No patient has “just” abdominal pain. Physicians have to look at the patient as a whole, not as a single symptom.
The plaintiff’s attorney will introduce the retrospective bias fallacy by asking a question such as “weren’t the patient’s findings consistent with [the missed disease]?” To avoid giving the jury the impression that the patient’s symptoms should have led me to think of the disease immediately, I had to avoid giving “yes or no” answers. Instead, I would need to say things like “In a patient who doesn’t have symptoms X, Y and Z, the findings are not consistent with that diagnosis.” Or I could also say “Possibly, but those symptoms are more likely to represent much more common diseases such as food intolerances, biliary colic, and gastritis.”
“Oh, and one last thing,” Vinny warned. “You have to keep a poker face. No matter what lies you hear, no matter how mad you get, you cannot show emotion while sitting at that table. I don’t want to see you making faces. I don’t want to see you shaking your head. Nothing. You understand me? Jurors don’t like it.”
“Sure.”
He continued on his tirade to drive the point home. “Once we nearly had to withdraw as counsel during a trial because a doctor was making such an ass of himself. He was smacking himself in the forehead, throwing his arms up in the air, and was holding up signs saying “Quack” to the jury when the plaintiff’s expert was testifying. The judge threatened to kick him out of the courtroom.”
I started chuckling while trying to think about how I’d react to the doctor if I was a juror.
“Then he testified and after he got done testifying, he walked down off the witness stand, stopped, looked at a wart on a juror’s nose, pointed at him and said ‘You have skin cancer.’ Then he walked out of the courtroom.”
We both laughed.
“The scary thing was that we won that case.”
“I get it. I get it. World Series of Poker. No goofy signs. Smile at jurors.”
My brain had officially become full. “I’m going home. See you next week.”
“Vinny told me more than once that litigation often becomes a war of attrition – whomever gives up first is the loser.”
In cases where the plaintiff has died this is true, since there isn’t as much pressure to get it resolved. Where the plaintiff is alive, has medical bill collectors calling, needs care going forward and can’t work and the family is struggling, most people who represent plaintiffs want the case to move because the client is calling them regularly needing it to get resolved one way or the other. Even if they’re applying for social security disability, that process takes at a minimum 12-18 months, unless they get approved right away, which rarely happens.
Conversely, if the insurer is paying the bills, they have no incentive to move the case. The longer they keep the money in their pocket, the more money to be earned on the float.
My experience suggests the average time in NY is closer to 3 -5 yrs before conclusion. These things do seem to have a life of their own.
Sorry to be cranky, but it’s “Asclepius” not “Aesculapius”.
Apart from that, I REALLY enjoy your ranting, WhiteCoat. I also learn a lot.
Greetings from Greece
Only spelled that way in Greek mythology. I used the Roman version.
We need some new approaches to the plaintiff experts. There is no recourse against them outside the trial. The defendant is an expert himself, and should be used to the maximum in the case. One should refer unprofessional conduct to the licensing board of each state in which he is licensed. Send in one complaint a week to a separate board. Each generates an investigation. Do the same with complaints to professional societies, and to the employer. Let the expert live with uncertainty for years if necessary. Generate legal fees if any complaint sticks.
Experts have absolute immunity for their opinions. This is based on the First Amendment, on a Supreme Court decision, and on universally accepted public policy. To encourage service to the court. It applies to the defense expert, and to the defendant when testifying. I think it is fair.
There is a lot of recourse within the trial, with the judge. This is never used, because it would end the medmal business. So the defense attorney must be forced. He may resign before allowing these.
1) Demand charts of the plaintiff experts for similar patients. If there are no recent charts, as in the past two years, seek disqualification of the expert. He is not an expert, then. Reading from a book does not make anyone an expert.
2) The defendant must read every word uttered by the plaintiff expert anywhere. If any asserted fact is not true, the witness is guilty of perjury or criminal contempt of court. So, double check all experience. Say, he testifies he spent 2 years in a fellowship, but left after one. That is a false fact, not opinion. Say, he testifies he read a certain document, but obviously knows nothing about it. That is a false fact. If an opinion contradicts an opinion in testimony or report, let the defense lawyer know to impeach the plaintiff expert. “Doctor, in which passage were you lying?”
3) I would like to see total e-discovery of all plaintiff parties, including the plaintiff, the plaintiff lawyer, and all plaintiff experts. Get all personal computers, get all social networking names and aliases, seeking improper motives in the lawyers, and bias in the plaintiff and in the plaintiff expert.
4) Have the defense expert go through the plaintiff expert report. And use this checklist of biases to characterized every conclusion.
http://en.wikipedia.org/wiki/List_of_cognitive_biases
Some defense attorney will have the courage to call for a mistrial because these biases violate the procedural due process rights found for the civil defendant. Most medmal cases are weak and represent an expression of outcome bias. The latter also explains the disparities in insurance rates between specialties. Neurosurgeons do not make more mistakes than dermatologists. Their bad outcome generates more revenge motivation than those of dermatologists. White Coat correctly identified the scapegoating motive of the claim. It is unlawful. The defense attorney must ask for a mistrial and all costs to the personal assets of the plaintiff lawyer. Will never happen unless the defense attorney is threatened with personal destruction by another lawyer.
Though I’ve never done it, I’ve seen defense lawyers file absurd expert reports against me, reports from blatantly under-qualified and/or incredible expert witnesses.
There’s a couple of tactical reasons for doing that, including increasing the other side’s costs, forcing them and their experts to prepare for far more issues, and keeping the other side guessing all the way until trial if they’ll actually call the bozo.
I can’t say if that’s the situation in your case (I’d particularly need to know the focus of each report vis-a-vis each defendant), but it’s a possibility.
Has any defense attorney ever demanded your total e-discovery, while preserving attorney client privilege, of course?
Any accountability would have to be within the medmal trial. The certificate of merit requirement in your state has ironically provided an absolute shield for you from a countersuit for abuse of process. The plaintiff lawyer will say, I know nothing about medicine, “My medical expert told me the claim had merit.” Of course the vast majority of claims are weak, and fail, falsifying that defense. Most cases are lawsuit lotto tickets, or to harass and collect to go away. The failure rate of over 70% of medmal claim represents massive legal malpractice with scienter (knowledge) decade after decade, malpractice by the class of the plaintiff bar against the class of doctors in your state. With exemplary damages, to deter, all human assets in the universe would not be enough of a verdict. Judges allowing these weak cases decade after decade should also lose all immunities. They and their employers, the counties, should be made to pay to the last bucket of the last fire station.
” Of course the vast majority of claims are weak, and fail, falsifying that defense.”
You need to be more specific with your statements, for two reasons. One, you have no idea if the vast majority of the “claims” are weak and fail. The vast majority of claims are confidentially settled. Two, you have no idea if they were close questions or not, as you haven’t seen the files.
“Most cases are lawsuit lotto tickets, or to harass and collect to go away.”
Again, you’re loose with your language. Unless you know what the “lottery winner” in these cases actually gets, which you almost certainly don’t. Also, you’ve clearly never dealt with an insurance company if you think they pay claims just to avoid harassment on a regular basis.
“The failure rate of over 70% of medmal claim represents massive legal malpractice with scienter (knowledge) decade after decade, malpractice by the class of the plaintiff bar against the class of doctors in your state.”
Again, this is a number that is almost certainly false. If you meant to say that those taken all the way to a jury end up with physicians winning that percentage, you’d be correct. With regard to claims, you have no way of knowing.
I realize you have some axe to grind with regard to liabilities to third parties, and that’s your business, but you should probably be a little more precise in your language and your facts if you want people to buy into your argument.
Matt: Name a stage of litigation, from a plaintiff phone call to the plaintiff lawyer office, to appeal to the Supreme Court of a state, the failure rate is over 70%. Over that fraction of plaintiffs are rejected by lawyers. Then 70% of those who remain are rejected at the certificate of merit stage. Of those left, over 70% are just dropped. Then of those left, 70% are dismissed. Of those left, 70% or more have a verdict favoring the doctor. Of those, 70% are reversed on appeal. Of those left, the majority settle for cents on the dollar or if very high for the insurance limit. The overwhelming majority, perhaps 70% of those cases that pay out reflect outcome bias, and jury misunderstanding of the limits of care. That leaves the tiniest fraction of valid cases if any.
With such a huge fraction of weak and frivolous cases, isn’t it time to help the plaintiff bar improve its performance with legal malpractice liability to the adverse third party. The filing of a weak case is legal malpractice. To deter.
No defense attorney has every frivolously demanded total e-discovery of everything I did on a case. If they did, I’d demand and win sanctions against them.
Some have demanded the “file” of my expert, including communications, which I’ve produced. I’ve asked for the “file” of defense experts, too, many of whom “forget” to bring it to trial.
Assuming your “70%” refrain is true (it isn’t), I don’t know what bearing that has on any particular case. It’s like a doctor believing that, because most chest pain isn’t a heart attack, chest pain never means you have a heart attack.
I’m no lawyer (I’m a doc) but I am an English speaker, and with respect Max:
“Assuming your “70%” refrain is true (it isn’t), I don’t know what bearing that has on any particular case. It’s like a doctor believing that, because most chest pain isn’t a heart attack, chest pain never means you have a heart attack.”
… is a lousy analogy. That wasn’t the argument. The argument was, with so many invalid claims accepted and put forth by lawyers, there ought to be some recourse against the lawyers who accept and put forth said invalid claims.
It’s a bit more like, sharp chest pain radiating to the right great toe isn’t a heart attack, and any doctor who orders trops on someone with this type of chest pain ought to be unemployed.
Incidentally, I agree.
Primary sclerosing cholangitis is classified as a rare disease, qualified for Orphan Drug research. That makes its low likelihood “per se” (official in statute or regulation). “Per se” also means automatic, under force of law, not requiring any proof.
It is not within the standard of professional care in the clinical setting to diagnose rare diseases. It is more a job relegated to academic medical centers or much slower deliberation and workup in a specialist office. The failure to diagnose claim should be automatically dismissed. The saying, if you hear hoof beats think, horse, not zebra, in this area, illustrates the standard of care. Workup and treatment for cholangitis would represent malpractice in 99.9% of cases with the same presentation.
The test for it is beyond the scope of practice of an emergency room. Ordering this test would be beyond the scope of expertise and knowledge and would represent unprofessional conduct and malpractice itself. Would it be OK if an ER doc did a routine neurosurgery? It would be malpractice due to lack of qualification. The same is true for the diagnosis of a disease classified as rare by the NIH, giving it government imprimatur.
http://rarediseases.info.nih.gov/GARD/Disease.aspx?diseaseID=1280
Its diagnosis and its treatment are beyond the scope of practice of an ER doc.
http://digestive.niddk.nih.gov/ddiseases/pubs/primarysclerosingcholangitis/
A standard of care cannot contradict a government, regulatory classification.
This has been a fascinating thread, and it has proved rather provocative. It is my impression that medical malpractice is largely driven by the experts, since I don’t think the patients lawyers or judges can tell the difference. I was wondering where you got your 70% figures (above). If one figures there are about 1,000,000 physicians in the USA, and about 8% of them are acused of malpractice annually, there is a potential case load of 80,000 (I did a quick web search, but these are guestimated numbers), then 24,000 are not rejected upon initial call, 7,200 obtain a certificate of merit, 2,160 are not dropped, 648 are not dismissed, 194 win at trial, 58 also win at appeal, 18 do not settle for cents on the dollar, and 6 are not the result of bias and jury misunderstanding. The rest, 79,994, are part of your 70% groups one way or another. Are those really the statistics, or are they guesses? Interesting numbers. I do sometimes suspect that most of what is called malpractice is not, but it is tough to believe it is this lopsided too.
I don’t know about his numbers, because he rarely cites a source. For the most comprehensive review of the issue, I would suggest the study published in the NEJM a couple of years ago by Dr. David Studdert. You can find the study here:
http://content.nejm.org/cgi/content/short/354/19/2024
The conclusion was that the system works pretty well, but the overhead costs are tremendous. Lest I be accused of misstating the findings, here is a quote from the primary author:
“Some people have suggested that the system is overrun with frivolous litigation. Our findings don’t support that,” said study author David M. Studdert, an associate professor of health policy and management at Harvard School of Public Health, in Boston. “The system is doing a reasonable job of channeling compensation to the right sorts of claims.”
As for the numbers Supremacy claims, many states don’t require a certificate of merit. And there are certainly no statistics kept on how many cases plaintiff lawyers reject, and only a few states keep track of the stats on their cases in terms of what kind, and the states don’t really have a way of knowing why they are dismissed – ie settlement or dismissed by plaintiff. The only parties with the info are the insurers, and well, they aren’t telling.
Matt: Sorry. It is not 30% accepted by the lawyer. It is 3%.
http://www.annals.org/cgi/content/full/120/9/792
At the other end, juries are kind to doctors, not 70% finding for the defense, 81%, with over 67% in a judicial hellhole.
http://www.aopc.org/NR/rdonlyres/4CA576C5-8401-4446-A6B5-22BB212E76B2/0/JuryVerdicts2008.pdf
About 30% of claims get any payment from insurance.
Kenneth E. Thorpe, “The Medical Malpractice ‘Crisis’: Recent Trends and the Impact of State Tort Reforms” (paper presented at the Council on Health Care Economics and Policy conference,
“Medical Malpractice in Crisis: Health Care Policy Options,” Washington, D.C., March 3, 2003); and CBO calculations based on data from the Physician Insurers Association of America.
Max, you are a pretty careful, conscientious, and prudent lawyer. You would never knowingly file a weak claim.
I am curious about your verdict track record, if that is not too personal. The data are in the public record, anyway.
100% plaintiff’s verdicts on medical malpractice cases in front of juries. Had two last year.
Don’t try and read anything into that. It doesn’t mean I’m a super lawyer or a charlatan, and it doesn’t mean all doctors commit malpractice or always lose to juries. It is what it is, a tiny anecdotal snapshot, not a good source of statistical conclusions.
One of them should, and could, have been settled easily, but the defendant and insurer chose to offer nothing but nuisance value, then admitted liability on the first day of trial in a desperate attempt to keep embarrassing information out. I also suspect their standard of care expert refused to actually testify in support of his opinion. Even after that, they offered nothing more than nuisance. So verdict it was.
If a doctor has made a mistake that hurt a patient, settling is the moral thing to do. The doctor buys insurance to reassure the patients some compensation will follow a mistake. That is what it is for. On the other hand, there is a duty to defend clinical care to the utmost if the opposite is true.
Whitecoat – a question for you. You mentioned that the original expert retained by your insurer thought you were negligent, so you insisted they consult another. If you knew that the plaintiff in your case had the same experience where the original expert they consulted said NO negligence, but then they consulted another who said you were, and they proceeded with the claim, what would have been your reaction?
Depends upon the basis for the opinion.
I can assert that the world is flat, but that doesn’t make it true. I can substantiate my assertion with 14th Century statistics, but those statistics were suspect, and if those were the only statistics I used, it would make my opinion suspect.
I also know that the plaintiff consulted 3 other law firms before the Grinch took the case.
I have a couple of posts about the expert’s testimony and you may be surprised by my actions.
Well, you wouldn’t know what the basis was, you’d just know that there had been another one. You don’t think your assumption would be that they were shopping for a “whore”?
Consulting other law firms doesn’t mean much. If you were to come into my office today with a medical malpractice case and sat down and told me the story I’d likely refer you to someone else as I don’t handle them very often. Has little to do with the merits of your case, and more to do with the economics of taking those cases. But you’d have consulted with at least one firm before you found one to take your case.
I look forward to your expert posts.
A change in the Rules of Evidence should allow discovery of non-testifying experts. This does not violate attorney-client privilege. If the attorney has shown the record to 12 experts who refused to support the claim, then finds a derelict, retired, non-experienced, disgraced clinician, desperate to pay his living expenses, with testimony providing over 10% of income, shouldn’t the jury know that? What a bunch of experts say is OK as a practice is the standard of care. What one derelict says is the standard is not.
If opposing experts are testifying in good faith (truthfully), a scientific controversy exists. It cannot be resolved by rhetoric in court, but only by additional scientific data. The court should dismiss the case as outside its subject matter jurisdiction. Only cases that are within the knowledge of the jury or that have an expert support only the plaintiff should go forward past the first motion to dismiss.
When opposing experts testify, the jury will vote for the one it likes, as a person. This biased decision violates the procedural due process right of the civil defendant to a fair hearing, something found by the Supreme Court.
This defense has never been used. It should be tested. If judges allow it, much of the opprobrium brought on the court for the medmal debacle would be resolved.
If one of the experts can be shown to be testifying in bad faith (lying), then all legal costs should be assessed to the assets of the expert after a mistrial is called. If the expert is lying about a fact, then perjury charges should be pressed by the judge.
An example of a case within the knowledge of the jury is a wrong site surgery, or a blood transfusion to the wrong person.
This motion has the potential to cut the medmal business by a lot. Not only will the plaintiff bar resist it to the utmost, but so will the defense bar, the insurance business, and judges. They would all lose jobs. The doctor may have to hire a private attorney from outside the medmal field, perhaps from the civil rights arena.
[...] 5 & 6 of White Coat’s malpractice-suit saga [opposition's expert witness; emotional [...]
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