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This article explores the dynamics of medical malpractice cases, including the role of plaintiffs' and defense lawyers, their incentives, and the starting points in these cases. It also delves into the various defendants involved, the importance of facts and expert testimony in proving a case, and the timeline analysis of these cases.
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Who Drives the Litigation Machine? • Plaintiffs' lawyers have the burden of finding and bringing the cases • Running cases • Lots of conflicts, some prosecutions • Defense lawyers have to hustle insurance companies and medical businesses • Just as ruthless, but more dignified
How do Tort Lawyers Get Paid? • Plaintiff lawyers • Contingent fees • 1/3 to 50% • plus expenses, many want expenses reimbursed or fronted by the client, but it varies • Defense lawyers • Traditionally by the hour, plus expenses • Some are now on bids
What are the Incentives for Plaintiff Lawyers? • Pick big cases • Work them as cheaply as possible until you are sure they are good • Drop them if they turn out to be hard • Different from criminal law - it is always an economic decision • Settle when you can • Winning is good even if you lose on appeal
What are the Incentives for Defense Lawyers? • Hourly • Drag everything out • Be careful to not do critical things until the end • Lots of dilatory practice • Fixed fee • See plaintiff's lawyers
What is the Starting Point? • Damages • Injury • More loveable than the defendants • A person with legal standing to bring the claim • The prima facie case you have to present to jury to be allowed to get a verdict • Usually defined by the jury instructions • The expert testimony to establish standard of care, breech, and causation
Plaintiffs • Who is the patient? • Who else is claiming an injury? • Spouse/Ex-spouse? • Parents? • Common law relatives? • Bystanders? • Who has the legal right/duty to bring a claim? • What are the conflicts of interest? • Who can you trust? • Are you sure?
Physician Defendants • Who does the patient think did wrong? • Who was the primary physician? • Where there any consultants? • Where there any hospital based physicians? • You will need to review the records carefully to look for hidden physicians • What are the legal relationships between the physicians and with any employers or contractors?
Non-Physician Defendants • Paramedical personnel • Nurse practitioners? • Physician's assistants? • Nurse anesthetists? • Other paramedical personnel • Who is the employer? • Who has the legal duty to supervise?
Corporate Defendants • Hospital • Vicarious liability for employees • Negligent supervision or retention of contractors • Laboratories • Product manufacturers and sellers
Proof = Facts • You win cases on facts and expert testimony, not on tort theories • Where do you find facts? • Medical records • Witness interviews • Informers • Detectives
Physician office records • Patient charts • Appointment books • Any other records • Physician's personal diary and records
Hospital records • Chart • Nurses' notes • Physician's notes • Physician's orders • Vital signs • Tests • Consent forms
Off-chart records • Private notes by staff • Cardex • Pharmacy records • Lab records • Risk management records • Billing office records • Pharmacy records • Independent lab records
Fact Witnesses • Who knows something? • Who did they tell?
What was the negligence? • Systems errors? • Individual negligence? • Cover-up? • Bad faith?
Timeline Analysis • Grid • Who knew what and when? • Be able to show the jury the timeframe
Analyzing Cases • Does the plaintiff get money from the ruling? • What is not in the case? • Settling parties • Unappealed issues • What is the timeline of the facts? • What is the legal issue? • How does the ruling deal with the legal issue?
