Articles Posted in Trial Strategies

Many people think medical malpractice is an invention of medical malpractice lawyers to get money.  It is not.  Before COVID-19, it was the third leading cause of death in the United States.  That is not a malpractice lawyer talking.  It is from Johns Hopkins.

Other studies in the healthcare field have shown that only a fraction of people injured by medical negligence end up bringing a claim, let alone filing a lawsuit. So the reality is that most incidents of medical malpractice never even result in litigation.

When medical malpractice does generate a lawsuit, however, there is a very strong likelihood that the lawsuit will eventually be resolved through some type of out of court settlement. Somewhere between 70-85% of all medical malpractice lawsuits get settled out of court. This means that a big part of every medical malpractice lawsuit is a continuing process of back and forth negotiation about the settlement value of the case. Most people are entirely unfamiliar with how this process works, so the goal of this post is to give you an inside look at how malpractice settlements get negotiated.

Here an interesting medical malpractice case out of Tennessee worth discussing that relates to substituting plaintiffs in a medical malpractice case.  In this case, Holley v.  Blackett, the Tennessee Court of Appeals allowed common sense to triumph, reversing a trial court’s entry of summary judgment in a wrongful death breast cancer misdiagnosis medical malpractice lawsuit,  allowing the minor daughter of a man who died while pursuing claims for his wife’s death to be named as the plaintiff.

Here are the facts: A husband brings a medical malpractice action on behalf of his wife, alleging her cancer was misdiagnosed and caused her death. This is a failure to diagnose a stroke case.   The doctor filed a motion for summary judgment.  While the motion was pending, the husband dies.  This is where it gets a little weird.  Plaintiff’s malpractice attorney has the husband’s daughter substituted as the plaintiff.  The minor girl was born as the result of an extramarital affair that husband had during his marriage.

Crazy, right?  I can’t help but think about it from the dead wife’s perspective.  Would she still support the claim?  I’m assuming she is in a place now where you don’t get caught up in the now trivial, but at the time grievous, sins committed on earth.  But still. The trial court dismissed the case, finding that the substitution was flawed because the malpractice lawyers never bothered to, ah, get permission from the girl’s guardian.

In medical malpractice cases, doctors often want to explicitly or implicitly argue that there is informed consent of a risk of an injury and that injuries can occur, therefore, there can be no malpractice claim because the patient was informed of the risks. The strategy is to convince the jurors that the injuries were the expected consequences of the treatment or surgery and since the patient accepted those consequences, there is no malpractice.

This logic fails. While I am aware of the risk of driving down the street, I can still bring a negligence claim if someone runs a stop sign and hits me. Few Maryland judges will allow doctors to make this argument directly in medical malpractice cases. But doctors’ lawyers also want to make this argument indirectly by just asking plaintiffs on cross-examination about the informed consent document they executed. Some jurors, particularly those that are inclined to be predisposed toward the doctor, may conclude that consent to the surgery is fundamentally the same as consent to the injury which resulted from the surgery, essentially finding that informed consent acts as some sort of waiver.

This raises the question of whether evidence that a patient signed an informed consent is admissible in malpractice cases where informed consent is not at issue. Our malpractice lawyers recently fought this issue, filing a motion in limine. We won the motion and the trial. You can find the motion in limine on this issue on our website.

Many are concerned about frivolous medical malpractice lawsuits. Little if any attention is given to frivolous malpractice lawsuit defenses.

Everyone realizes that doctors are human beings and sometimes the very best doctors make mistakes, as do the best lawyers, accountants, plumbers and waitresses. But it is incredible how few malpractice lawsuits are conceded on negligence. There is almost invariably some defense, no matter how ridiculous.

We faced one of these classic throw all logic to the win defenses in a deposition yesterday: the “it is a known risk excuses everything defense.”

One question you will hear Maryland medical malpractice lawyers asking each other is: do you need to file in health claims arbitration if the case if you filed in federal court? It is a good question because it is a tough question whether under the Erie Doctrine, Maryland’s health claims arbitration is “substantive” or “procedural.”

While the analysis is tricky, the answer is clear. In Davison v. Sinai Hospital of Baltimore, Inc., 462 F. Supp. 778 (1978), the court found that District Court for the District of Maryland held that mandatory arbitration of Maryland medical malpractice lawsuits is a prerequisite to trial.

So if you have a federal medical malpractice case – usually a diversity case in a jurisdiction where you are not excited about the potential jurors – you still need to begin down the Maryland Health Claims Arbitration path.

As the Internet is cluttered with personal information, there is increasing talk in legal journals about using blogs, Facebook, MySpace, and other social networking Web sites, to learn more about potential jurors. The Internet provides such a rich resource of information about potential and even already seated jurors.

The problem in Maryland medical malpractice lawyers using this kind of resource is that it is very difficult logistically. Once the jury walks into the room, your computer is facing the jurors. There really is no time under Maryland’s quick voir dire selection to pass the juror’s information along. Once a jury is already seated, I think it is really hard to find information about that juror to tailor your opening or closing statements around a particular juror.