Multi-Plaintiff Medical Cases.
The JHPII Approach
Preparing and trying a medical malpractice case can be daunting. Not just the money, the toll it takes on your clients too. A big part of those economic costs involve expert witnesses. Fortunately, there are tools and tactics you can use to prepare your case and control costs, both economic and emotional. - All you have to do is care about your client, and do your work.
What Your Client Knows is Priceless and Costs You Nothing.
Your client or, in a death case, her family, has a wealth of priceless information. While the medical records hold many answers regarding medical negligence, the framework for their review comes from your client. It is important to not just understand your client’s medical and surgical history, but also her family and cultural background, social habits, the interactions your client had with providers, informed consent – or lack thereof, and case-specific questions regarding the etiology of presenting a complaint. Where your client’s recollection is different from the record, question the record.
Providers responsible for the patient’s death are oftentimes negligent in gathering the requisite history. This failure can lead to the patient’s mismanagement and death. If more than one provider is involved, subsequent providers oftentimes adopt the first misrepresented history, or diagnosis, or both.
So, first understand what happened from your client’s perspective, i.e., how the provider explained the proposed management and expectations, the patient’s disease or injury, and subsequent events. Exhaustive work with your client’s family will enable you to fully understand whether the providers were misguided because they did not understand your client’s medical condition. Family members and lay witnesses are instrumental in developing the facts of your case, what went wrong, and why.
The Medical Record – Pennies per Page, Worth its Weight in Gold.
After gathering information from your client and developing the facts, inquire into the actions of every provider involved – from first to last - including each facility where your client received treatment, laboratory and ancillary service companies, and other potential defendants. The medical record must include not just summaries and reports, you want lab results and films. This will allow you to reconcile the times the labs or studies were ordered with the results as reported and any actions taken or not taken based upon those results.
Request certified copies of all medical records, along with all the applicable policies and procedures and read those too. Armed with a thorough understanding of your client’s story, certified copies of her medical records and relevant policies and procedures, review your client’s medical records. Your goal is to understand what went wrong and why. You have to learn the applicable medicine.
Send a spoliation letter too. Medical records have been spoliated. Never assume that what you get is the entire record, even if the provider copied the front and back of the file. Get copies of all relevant x-rays, other films and diagnostic studies, and have your expert review them to verify the radiologist’s readings.
In the age of electronic medical records, it is surprisingly easy to change entries of hospital provided services. We have seen the words in a hospital record change from “no evidence of mesenteric tear” to “possible mesenteric tear” with surprising ease. When someone has died, study every aspect of the record leading up to the death, not how the defendants chose to characterize it afterward. This is critical to causation. The defendants may try to introduce the compendium of favorable after the fact characterizations. Be prepared to challenge this portrayal, which is largely - if not entirely - irrelevant.
If you do not understand what happened biologically, do not take the case.
If you think you can prosecute a plaintiff’s case by character assassination of a physician you are living in the 70’s. Focus on the institution, corporate bosses and their claims of quality.
Don’t settle for summary lab reports around the time of death, the medical record includes the actual itemized reports which may show variations. The defense can bury the smoking gun in many places. Depose the records clerk to determine what comprises the medical record. You may seek advice from your expert, but first focus your efforts on the events immediately before the catastrophic event. This is where dispositive evidence will likely be.
Using the chronology of events developed in your work with your client, compare those events to entries in her medical record recorded by her healthcare providers. The cast of characters and potential defendants will come into focus. There may also be other characters lurking in the background. Depose the nursing supervisor at the time the incident happened. Review the hospital’s incident reporting policy. Review the hospital's ICU protocols if the patient died in the ICU, the place in the hospital they are most likely to die.
You will ultimately be telling your client’s story. There is no substitute for your thorough understanding of what happened: what went wrong, and why it went wrong. Some aspects of negligence may be obvious during your review. Others may not. For example, the absence of any entries by providers when the omission leading to the death occurred or critical lab values that were never recorded or acted upon by a provider may be obvious. Some management entries, however, may subtly reveal a negligent decision leading to a catastrophic injury or death.
While this determination ultimately requires an expert’s opinion based on his independent review of the case, your goal is to understand what went wrong and why, better than your expert. Apprise your client of your impressions based on your preliminary review of the medical record, and determine whether an expert medical review is warranted. Let your expert know the last thing you want to do is get into a case and learn a year and a half and $100,000 later that there is no case. There is no need to try to color your experts' views. You are better off turning down a good case than taking a bad one. It’s not good for you. It’s not good for your client.
The Government’s Surveillance of the Defendants.
Public information about hospitals, physicians and other healthcare providers is readily available. The most important information may not be on the Internet.
Hospitals are governed by statutes. Hospitals are statutory entities in every state and often have a public file. The government has a duty to provide surveillance of hospitals and conduct surveys to help ensure patient safety.
Determine what agency is conducting hospital surveys in your state. Go down to your state’s office, and go through their files. Those files should be thoroughly reviewed for any prior related systemic problems and investigations. In the modern era of corporate healthcare, the progressive medical malpractice lawyer must think more in terms of systemic problems and enterprise malpractice and less in terms of an individual provider committing malpractice by failing in some esoteric duty to the patient.
Corporate leadership controls many internal processes that purport to promote patient safety in an institution. That defense is likely to implicate their clients in technical violations of policies or procedures or both. The JCAHO, the Joint Commission for the Accreditation of Healthcare Organizations, is typically thought of as a federal agency. It is not. JCAHO is a private organization funded by hospitals that lobby State governments to adopt their standards.
JCAHO’s performance reports and surveys are not protected or privileged under peer review privileges. JCAHO in its Accreditation Manual for Hospitals includes standards regarding physician credentialing, character and judgment, competence and training. JCAHO’s standards, taken in conjunction with the hospital’s appointment standards for physicians, are useful in determining hospital liability for negligent credentialing of defendant physicians.
Sometimes the state will adopt these standards as an equal substitute, but the state itself has its own regulations and those must be reviewed to establish the statutory standards of care for directors and hospital administration, parties who frequently consider themselves immune from malpractice claims and who may act particularly recklessly.
State medical boards should be a starting point in reviewing the physician where past records of malpractice claims are likely to be admitted. This knowledge may offer a psychological advantage prior to trial. Most state boards offer online profiles of licensed physicians. These profiles may reveal pending malpractice cases, claims paid for malpractice claims, and disciplinary actions taken by the State or hospitals. The physician may be or may have been licensed in another state, so it is important to look at other state’s online profiles as well.The American Medical Association also offers a physician locator that may prove helpful to find the states where the physician is licensed; however, this site does not provide the physician’s malpractice or discipline history. Other sources of physician information that may prove beneficial: performing a criminal background check; determining whether the physician is board certified through one of the specialty boards under the American Board of Medical Specialties, an offshoot organization of the AMA; performing a Medline search to see if the physician has published articles; searching the physician’s name using Google or other major search engines; and looking at hospital and medical school alumni directory sites.
The harder the information is to find, the more valuable it is likely to be. Your State’s department of hospital regulation public file is unlikely to be searchable on the Internet and will likely require a site visit. How do you get it? Read your State’s hospital statute and determine which department is responsible for the investigations. Then go to the department and start asking questions and don’t stop until someone sits you down with a file in a conference room. Then have at it.
Defendant corporate healthcare entities, such as hospitals and medical centers, also have public records that may prove helpful. While many corporate entities like hospitals have been successful in keeping the most valuable information off-line, once the names of potential defendants have been elucidated from your client work and review of the medical record, a quick review of the regulatory body in charge of registering corporations, such as the Secretary of State, can be searched to clarify the name of the entity and other vital statistics. With the correct name of the defendant enables using search engines for general searches, and legal case history searches.
The only way to get some information regarding healthcare facilities likewise requires an in person trip to the state’s licensing board to obtain the records. Each state has its own regulatory body that investigates hospitals, e.g. the Georgia Department of Community Health, Division of Healthcare Facility Regulation. Healthcare facilities that have been subject to investigation for violations of standards, regulations or other laws will have records regarding those matters at the appropriate regulatory agency. In cases where the healthcare entity may have committed Medicare or Medicaid fraud, the U.S. Dept. of Health & Human Services Office of Inspector General also has useful resources. A recent example illustrates the efficacy of this work. The patient died of a narcotic overdose while in treatment at a healthcare facility for pain management. The public records obtained from the licensing/regulatory board revealed that the United States Department of Health and Human Services ("HHS") had threatened to cease Medicare payments for services at that facility due to patient safety issues, especially those involving narcotics. As part of the agreement entered by the CEO of that facility with HHS, the hospital agreed to perform ‘Narcotic Withdrawal Scales’ on each patient treated at the facility. As it turned out, this was not the first time that the hospital had refused to perform the same “Narcotic Withdrawal Scale’ and caused a patient’s death. Because the defendants withheld the prior deaths and their causes, without our own investigation of state records, we may never have learned of the prior deaths. Not only did this information help prove negligence; it also helped undermine hospital defenses resulting from noncompliance with a federally mandated agreement, i.e. healthcare fraud.
Your Expert Witness,
Prepare a draft of the facts and organize the medical records in ascending chronological order. Help ensure your expert gets to the issues and completes a thorough yet cost-effective review. In your cover letter to your expert explain your view of what went wrong and why, to help focus the expert’s attention. If you’ve developed illustrative exhibits or other demonstrative evidence, attach those too. Medical expert opinion can be an expensive aspect of developing your case. The more complex and lengthy the case, the more expensive the experts’ reviews will be. The up front organization of the materials and medical record can save thousands of dollars too.
Choose the best medical expert available. Consider his specialized knowledge. For example, while a family practice physician may have the requisite expertise to render his opinion on a birth-related injury, an obstetrician expert presently involved in patient care is more credible and requires less research to form opinions. Retain a medical expert with a sound understanding of medical malpractice who can effectively present his findings. An experienced medical expert in the field most closely aligned with your claim can provide a preliminary report that you can use to further develop your case and determine what further investigation is warranted.
Expert Depositions
Once you have a thorough understanding of the medicine, your client, other witness’ accounts of the events surrounding the malpractice, public information, and your medical expert’s preliminary report, you may begin to develop the evidence you’ll need to prove your case. First, prepare a list of potential witnesses and what you plan to prove with each witness. Once you’ve determined what you want to get from each witness, it is time to proceed with depositions.
Prepare each expert's deposition as a controlled cross. First, lay out the basic medicine in the case. Have the opposing expert agree. If he does not, have the medical text immediately available to confront the witness. If the witness suggests he has an opinion that’s not in any textbook, walk through where he’s seen the information. Peer reviewed journal? Non-Peer reviewed journal? Grand Rounds? Rounds? Posters? Morbidity and Mortality Conferences? Committee Meetings? Or other evidence based medicine resources?
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Ask ‘why’ the defendant acted or failed to act leading to the injury. While most records are electronic or typed, if some of the notes are indecipherable or are handwritten, the defendant can read them for you at deposition and clarify the record. Ask the defendant about any conversations that he or she had with the client or other witnesses/family regarding the care of the client. This may be useful to compare with what your client revealed to you. Medical cases involve many terms that the typical layperson would not understand, so it is important to have the physician define those terms.
After obtainig the basic information in the case, it is appropriate to ask a physician about his or her credentials and board certification, whether his or her license or hospital privileges have ever been suspended or revoked, and the like. If the physician is an expert, it is also appropriate to ask whether he or she has ever performed expert witness for defendants or for plaintiffs in the present or in past cases, names and kinds of cases, whether they testified, whether they are/were paid, and how many cases in the past were for defendants versus plaintiffs. The questions regarding specific facts surrounding the circumstances and the care, or lack thereof, may be open-ended or leading.
The Final Word
Great people in a great environment will do great things. Strategic Focus in Medical cases helps create a great environment to learn your case and help your client. Using information readily available from your client, her medical record, her hospital’s policies and procedures, public records, state agencies, and carefully presenting your case to your medical expert will enable you to fully develop your client’s medical case. Handling medical cases should be fun and inspiring for everyone involved.