Kelly on Malpractice 2.0

Kelly on Malpractice 

2.0

Clinton  L. Kelly

INTRODUCTION

            I have been fascinated with complex medical and legal issues ever since my first medical malpractice case.  These cases involve the best lawyers in town fighting with uncommon vigor and commitment.  I have never handled an easy or routine medical malpractice case.  There is no such thing.  Even when the liability seems obvious, creative lawyers for health care providers raise tough defenses, which always put the outcome of the case in doubt.  The skill and reputation of the defense lawyers drives me to work harder and be more prepared in these cases.  The patient’s catastrophic injuries patients add pressure to the trials.  I have an enduring passion for these cases.  This is why medical malpractice constitutes about 80% of my practice.  This is why I obtained certification as a medical malpractice specialist by the Tennessee Commission on Continuing Legal Education. I love what I do.  

            I wrote this book because there is no other text devoted exclusively to medical malpractice litigation in Tennessee.  I have posted some portions of this book on my blog at kellyonmalpratice.com.  I publish a newsletter that I email to subscribers about topics in medical malpractice.  I wrote this book for lawyers, judges, clients, and interested members of the public as a reference.  However, I am not rendering legal advice in this book.  This book contains my opinions about medical malpractice law in Tennessee.  It is no substitute for the legal advice of a qualified medical malpractice lawyer.  

The practice of law, like the practice of medicine, is more specialized than ever.  If you have a patent dispute, then hire a lawyer who specializes in patents.  If you are charged with a crime, then hire a lawyer who specializes in criminal procedure.  If you have a medical malpractice claim, then I hire a certified medical malpractice specialist.  Feel free to contact me with questions.  I gladly respond to inquiries.  I provide consultations for lawyers who need help with these cases.  I also accept referrals.  The point here is that you should hire the right lawyer qualified for these specialized cases.  Selecting the right lawyer, like choosing the right doctor, is one of the most important decisions you will ever make.    

I am a partner in law firm of Kelly & Kelly. I practice with my father, F. Dulin Kelly.  I attended high school at Montgomery Bell Academy in Nashville.  I attended Rhodes College in Memphis, where I received my Bachelor of Arts in Political Science in 1990.  I attended Memphis University School of Law, where I obtained my juris doctorate in 1993.  I am proud to mention that I was a member of the Law Review and received the Moot Court Board Award.  I handle cases of medical malpractice, medical products liability, and pharmaceutical liability.  I am member of theTennessee Bar Association, the Sumner County Bar Association, the American Association of Justice’s professional negligence section, and the Southern Trial Lawyers Association, where I serve on the board of governors.  I am also a member of the Tennessee Association of Justice, where I formerly served on the board of governors.  I am a diplomat of AAJ’s National College of Advocacy.

        I.         Assessing the Malpractice Claim.   

     Current statistics show that plaintiffs lose about 80% of medical malpractice trials.  Let that sink in for moment.  The primary purpose of this book is to educate and prepare you for what you will face in pursuing these cases that 80% of patients will lose at trial.  Every medical malpractice case is a war.  It is civil combat but combat nonetheless.  It is high risk, high stakes litigation where you can ill afford to make a rookie mistake.  The biggest rookie mistake is failing to assess the case in the beginning with your eyes wide open.  My father once described this mistake as seeing the case “with rose tinted glasses.” Let’s take the glasses off and view medical malpractice cases as they really are – tough, expensive, and very hard to win.  This is why assessing the malpractice claim is so important to get right.  

Whether you are a lawyer or client considering the pursuit of malpractice claim, you must understand your opponent.  You must also have a map of the battlefield.  Holding physicians and hospitals accountable for their negligence is a daunting task.  I think medical negligence cases are the most difficult for the plaintiff lawyer to win. There are many reasons for this.  The physician defendant starts out with big advantages.[1]A physician is hard working and often well respected in the community.  He saves lives.  His insurance company can find pristine medical experts to testify on his behalf no matter how negligent his care is proven to be.  

Doctors protect doctors.  The medical profession in Tennessee has a “conspiracy of silence” often due to liability insurance coverage from the same insurance company. This cripples the plaintiff lawyer’s ability to find a local expert willing to testify on the patient’s behalf.[2]  Most jurors admire doctors.  The average parent would be proud to have his child become a physician.  Unfortunately, the same cannot be said about jurors’ feelings toward the legal profession.  I discovered this when asking a jury panel during voir dire whether they thought there are too many lawyers in America.  They all raised their hands.  Cheesy television ads from personal injury lawyers constantly reaffirm the image of the ambulance chaser in the minds of jurors.  

On the contrary, jurors respect doctors.  Jurors may feel they owe their life to a doctor.  Jurors often have warm feelings for their own family physician.  Some jurors mistakenly believe that the physician defendant will face quasi-criminal consequences if they return a verdict for the patient.  Jurors in malpractice case will always give the benefit of the doubt to the physician, not the patient.  These are reasons why physicians win 80% of malpractice trials.  This is why you only afford to take the “best of the best” malpractice cases against a physician defendant.    

A hospital defendant has different advantages.  Hospitals are now part of a corporate health care chain. They are one of the largest employers in the community.  They hire hundreds, sometimes thousands, of people.  You will find multiple people in the jury pool who work or worked at the hospital.  Hospitals are affiliated with many businesses and interest groups that generate money for the community at large.  Hospitals are involved in many charitable events.  They are supreme marketers who advertise what they do for the community.  They can afford to hire the best law firms.  The best trial lawyers in every city represent hospitals.  One thing hospitals and doctors have in common is that they can afford to pay for the best defense.  These are reasons why hospitals win 80% of malpractice trials.  This is why you only afford to take the “best of the best” malpractice cases against a hospital defendant.    

The complexity of medical issues militates in favor of physicians and hospitals.  The science can intimidate some jurors.  They can fall prey to the “Monday morning quarterback” argument from defense counsel. This argument suggests it is unfair for jurors to second-guess difficult medical decision making in retrospect.  Never overlook the palpable suspicion jurors harbor for patients who file malpractice lawsuits.  Insurance companies, the U.S. Chamber of Commerce, the American Medical Association, and political candidates who represent “The 1%” have pounded this suspicion through tort reform propaganda over the last 30 years.  Studies have shown that, like the effect of the McDonalds hot coffee case, you will never disabuse jurors of this suspicion.  It is too entrenched in their social consciousness. All you can do is show that your case is different, that your client is different.  

            Your assessment must include the projected litigation costs in these cases.  The practice of medicine is more sophisticated than ever.  There has been a rise in the number of medical specialists and a corresponding rise in their fees.  Medical experts are busy, so the fee for their time is very expensive.  Depending upon his specialty, a medical expert will charge between $350 to $1,000 per hour for his deposition testimony.  The trial testimony can cost up to $6,000 per day. The litigation cost for your expert’s initial review, his assistance during discovery, his preparation for testimony, the expense of deposing the defendant’s experts, your travel-related expenses, court reporter charges, Westlaw legal research charges, medical articles, journals, textbooks, deposition fees and expenses, videography, photographs and enlargements, computer models or animations, filing fees, expert travel-related expenses, bank finance charges, AT&T conference calls, document copies and binding, records charges, postage, office supplies, case-specific litigation equipment, and case-specific items usually ranges between $50,000 to $75,000 before the trial begins.  The cost of the trial itself can add an additional $30,000 depending upon the number experts you bring to trial and the type of computer animations and demonstrative evidence you use.

            Your assessment should include a thorough review of the law related to the issues in your case.  Make sure you know what you are doing before filing the lawsuit.  A mistake here can be fatal to your case.  I have seen more changes in Tennessee’s medical negligence law in the last five years than at any other time in my practice.  These changes include the new tort reform law, which affects every cause of action that accrues after October 1, 2011.  Get advice if you are unsure about the law and procedures.  

Research the medical literature that is germane to your case.  You should research medical texts and periodicals for information about your case.  These treatises are not admissible as substantive evidence to prove your claim. However, they are invaluable sources for cross examination and impeachment.[3] You need to be fluent in the language of the medicine.  You should attend seminars devoted to medical malpractice and trial advocacy in general. This means joining litigation groups devoted to subjects like birth trauma, spinal cord injury, hospital liability, diagnosis errors, drug interactions, etc.  These litigation groups will teach you new tactics and introduce you to lawyers who specialize in a particular area of malpractice litigation. Don’t let your pride get in the way of consulting with a lawyer who has more experience than you do.  I always enjoy it when a lawyer asks for my advice or a consultation with me about a malpractice case.  Networking produces results. 

You must be prepared for discovery.  I believe most cases are won or lost in discovery.  Use the KISS method.  This means “keep it simple stupid.”  If the case is too complex for you to explain in a short presentation, then get some help to simply it or don’t take it.  Jurors will defer to the defense theory if the case is too complex for you to make them understand it.  Jurors must understand the case in simple terms in order to blame the defendant and find that the injury was preventable.  This is a reason why your choice of experts is crucial.  They will be responsible for simplifying the case and then explaining it to the jury.  Check with other malpractice lawyers to get their opinion of an expert’s performance in prior cases.  

You should assess the case based on a cost / benefit analysis.  I ask myself whether the potential verdict exceeds the litigation cost plus the value of my projected effort. I only accept cases on a 5:1 ratio.  This means the potential verdict must be at least five times greater than the litigation cost plus projected effort.  My firm finances all of the litigation costs, so I have to keep my credit line healthy. This is why the assessment of litigation cost is so important.  It is all about case flow.  You have to decide how much money you can afford to tie up in the case.  I create a four-year calendar for disposition because these cases sometimes wind up on the appellate track.  This means when I accept a new case, my firm’s cash flow and credit line is exposed for a projected four-year period.  Be prepared for a long financial voyage.  Don’t fall into the trap of accepting the claim as if it will settle.  Few situations are worse than spending $50,000 on a case you thought would settle and then being forced into an unexpected “all or nothing” trial for which you are unprepared.      

When assessing the case, stay away from the mindset that your case is a “slam dunk.”  There is no such thing for the plaintiff in medical malpractice litigation.  Juries are unpredictable but err on the side the physician or hospital.  I have lost cases that seemed like a “slam dunk” to me.  In my opinion, there is a 25% chance of losing a “slam dunk” every time you go to trial. You can call it a freak verdict.  You can call it the product of a bad jury.  You can call it a profound misjudgment about the merits.  After 18 years of doing this, I still don’t understand this phenomenon.  It is so painful.  Inexplicable losses are part of the risk malpractice trials.  Defense lawyers know this too.  They can do a bad job at trial (which is rare) and still win the case.  You can be perfect at trial and can still lose the case.  This is why you can only afford to take the “best of the best” cases. Inform your client in the beginning that he should take every final settlement offer seriously because there is no “slam dunk.” 

Every viable claim of medical malpractice has three major components: negligence, causation, and damages.  You need to assess each element separately.  For instance, negligence and serious harm in absence of causation is “negligence in a vacuum.”  This is where the “so what” defense applies.  Negligence and causation in absence of serious harm is de minimis.  This means it too costly for too little compensation.  Finally, causation and serious harm in absence of negligence is a “bad outcome.” Doctors call this an “acceptable risk” of the treatment.  I will discuss these elements in more detail later in the book.  

The most important decision you will make is whether to take the case.  This is whyyou must carefully assess and screen each case before accepting it.  Two stinging losses at trial within two years can bankrupt your firm.  You simply cannot afford to take every case with a bad outcome.  If you wind up rejecting over 90% of prospective claims, then you are screening the cases properly.  Be picky … be very picky.  

II.        Medical Negligence versus Simple Negligence. 

In some cases, you must distinguish between claims of medical negligence and claims of simple negligence.  This is a pregnant distinction because in the former you will need expert testimony, and in the latter you will not.  Most personal injury claims against health care providers are indeed medical negligence, not simple negligence.[4]  Usually, there some type of medical diagnosis, treatment, or other scientific matter that caused your client’s harm.[5]  For example, the assessment of a patient’s post-operative ability to walk and selection of the mode of ambulation involves specialized skill; therefore, expert testimony is required to define the standard of care.[6]  Likewise, a claim against a hospital for failing to put up bedrails in an emergency room, because a patient was confused, disoriented, and suffering from a high fever, requires expert testimony.[7]  On the other hand, expert testimony is not needed when the wrongful conduct does not involve specialized skill.  A hospital employee who chooses to assist a patient in walking through the hospital and then carelessly drops her may be sued under a simple negligence theory.[8]  I prefer the safe approach of retaining an expert in any claim that turns on the conduct of a health care practitioner.[9]                            Suppose you discover that a health care worker was negligent.  The negligence may be failing to record pertinent information in the patient’s chart, failing to record vital signs properly, failing to turn the patient’s body every two hours to prevent bed sores, failing to keep a wound site clean, etc. Hospitals are downsizing and thus saving money by hiring unlicensed health workers or techs.  These unlicensed workers are like orderlies who perform the tasks traditionally done by licensed nurses in the past.  For example, mental hospitals are using unlicensed mental health workers and patient technicians to perform behavioral assessments of suicide risk.  These unlicensed workers decide whether a reassessment of the patient is needed. It can be a life or death decision. Therefore, more malpractice cases will hinge on the conduct of unlicensed workers.  

This begs the question of whether the medical malpractice act or ordinary negligence applies to the unlicensed workers.  You need to decide early on whether you have a medical malpractice case or a case of ordinary negligence or case with both theories.  The answer will determine whether you need an expert and whether you need to comply with the notice and certificate of good faith provisions of the Medical Malpractice Act.  The court’s first task is to determine whether the claim against a health care provider is based on ordinary negligence, medical malpractice, or both. Estate of French v. Stratford House, — S.W.3d —, 2011 WL 238819, 5-6 (Tenn.).  The type of duty owed is always a question of law. West v. East Tenn. Pioneer Oil Co., 172 S.W.3d 545, 550 (Tenn.2005).   

Medical malpractice claims are governed by the Tennessee Medical Malpractice Act, which codified common law negligence. Gunter v. Lab. Corp. of Am., 121 S.W.3d 636, 639 (Tenn.2003).  A medical malpractice claimant must establish the elements of his claim through the testimony of an expert who meets the qualifications set forth in Tenn.Code Ann. § 29-26-115(b).  Unless the negligence is obvious and readily understandable by an average layperson, expert testimony is required to demonstrate the applicable standard of care and breach of that standard. Barkes v. River Park Hosp., Inc., — S.W.3d —, 2010 WL 4117151, at *4 n. 2 (Tenn.).  There is no such requirement for claim based on ordinary negligence.                                                                                     Because medical malpractice is a category of negligence, the distinction between medical malpractice and ordinary negligence can be subtle. Gunter, 121 S.W.3d at 639.  There is no rigid analytical line separating these two claims.  In Gunter, the Supreme Court found that the distinguishing feature between ordinary negligence and medical malpractice is whether a plaintiff’s claim is for injuries resulting from negligent medical treatment. Gunter, 121 S.W.3d at 640.  The Supreme Court embraced the following standard for distinguishing an ordinary negligence claim from one based upon medical malpractice:

[W]hen a claim alleges negligent conduct, which constitutes or bears a substantial relationship to the rendition of medical treatment by a medical professional, the medical malpractice statute is applicable.  Conversely, when the conduct alleged is not substantially related to the rendition of medical treatment by a medical professional, the medical malpractice statute does not apply. Id. at 641. 

A physician-patient relationship is an essential element of a medical malpractice claim. Bradshaw v. Daniel, 854 S.W.2d 865, 870 (Tenn.1993).  If there is no physician-patient relationship, then the claim is not medical malpractice.                                                          Tennessee’s tort reform law of 2011 changed the landscape significantly.  For instance, the new law at Tenn.Code Ann. § 29-26-101 now calls a claim for medical malpractice a “health care liability action.”  The legislature defines a “health care liability action” as follows:

(b) “Health care liability action” means any civil action, including claims against the state or a political subdivision thereof, alleging that a health care provider or providers have caused an injury related to the provision of, or failure to provide, health care services to a person, regardless of the theory of liability on which the action is based.

(c) Health care services to persons includes care by health care providers, which includes care by physicians, nurses, licensed practical nurses, pharmacists, pharmacy interns or pharmacy technicians under the supervision of a pharmacist, orderlies, certified nursing assistants, advance practice nurses, physician assistants, nursing technicians and other agents, employees and representatives of the provider, and also includes staffing, custodial or basic care, positioning, hydration and similar patient services.

(d) Any such civil action or claim is subject to the provisions of this part regardless of any other claims, causes of action, or theories of liability alleged in the complaint, provided that no provision of this part shall apply to claims against the state of Tennessee to the extent that such provision is inconsistent with or conflicts with the provisions of the Tennessee Claims Commission Act, codified in title 9, chapter 8, part 3.

The tort reform law may apply to “non-physicians” if they are involved in the medical treatment of patients. Gunter, 121 S.W.3d at 640.  In French v. Stratford House,33 S.W.3d 546 (Tenn.2011), the Supreme Court further refined the standard set forth in Gunter:

Medical malpractice cases typically involve a medical diagnosis, treatment or other scientific matters. The distinction between ordinary negligence and malpractice turns on whether the acts or omissions complained of involve a matter of medical science or art requiring specialized skills not ordinarily possessed by lay persons or whether the conduct complained of can instead be assessed on the basis of common everyday experience of the trier of fact….  If the alleged breach of the duty of care set forth in the complaint is one that was based upon medical art or science, training, or expertise, then it is a claim for medical malpractice.  If, however, the act or omission complained of is one that requires no specialized skills, and could be assessed by the trier of fact based on ordinary everyday experiences, then the claim sounds in ordinary negligence.  Of course, making that distinction is not always an easy task. French v. Stratford House,33 S.W.3d 546 (Tenn.2011).  

Based on the foregoing, the key principles from Frenchgoverning duty are as follows: 

1. Medical malpractice cases typically involve a medical diagnosis, treatment, or other scientific matters.  If the health care worker or technician did not do that, then the claim likely sounds in ordinary negligence; 

2. If the breach of the duty is one based upon medical art or science, training, or expertise, then it is a claim for medical malpractice.  If there was no science or art necessary to perform the task at hand, then the claim probably sounds in ordinary negligence; 

3. If, however, the act or omission requires specialized skills, and cannot be assessed by the jury based on ordinary everyday experiences, then it is a claim must be medical malpractice and thus brought pursuant to the act.  

You should ask whether the legislature overruled Gunter and Frenchwith the new tort reform statute.  It is too early to forecast definitely how the new tort reform law will affect cases likeGunterand French.  However, I think all cases against a “health care provider” may require an expert and compliance with the notice and certificate of good faith provisions of § 29-26-121, 122.                If your claim is ordinary negligence, the standard of care is reasonable care to refrain from conduct that will foreseeably cause injury to others. Turner v. Jordan, 957 S.W.2d 815, 818 (Tenn.1997).  There is a general duty of care to avoid an unreasonable risk of harm to others.  A risk of harm is unreasonable “if the foreseeable probability and gravity of harm posed by defendant’s conduct outweigh the burden upon defendant to engage in alternative conduct that would have prevented the harm.” Id.  These should not be claims of medical malpractice, yet the new tort reform law makes me wonder about that.