1 Handling the Medical Malpractice Case in Arizona National Business Institute June 21, 2013 Heather A. Neal One North Central Avenue Suite 900 Phoenix, Arizona Telephone: (602) Fax: (602) Web Site:
2 COST CONTAINMENT AND TIME SAVING STRATEGIES What are the costs that need to be considered? Filing Fees Copying/Administrative Costs Expert Costs/Fees Travel Costs Outside Vendor Costs/Fees Overhead Mock Trial Costs/Fees Jury Consultant Costs/Fees THREE RULES OF COST CONTAINMENT AND TIME SAVING STRATEGIES BE RATIONAL Conduct a cost/benefit analysis Is there a justification for the cost? BE ORGANIZED Staff the project appropriately Get the most bang for your buck MANAGE THE PROCESS Conduct frequent meetings to stay on track Prevent a free for all practice COST CONTAINMENT PRACTICES Filing Fees Inevitable Copying/Admin Fees Paperless Environment; Reduce Footprint Request medical records, discovery responses, disclosure statement, etc. electronically or on disc. Expert Costs/Fees Pick experts wisely; Consider their location, their hourly fees and what experts you truly need to retain. Don t retain three experts if one will suffice. However, consider A.R.S Travel Costs Choose local experts Consider utilizing technology such as Skype, Go-To Meeting, Face-Time and/or Videoconference Schedule depositions/meetings well in advance to reduce ticket/hotel costs COST CONTAINMENT PRACTICES Outside Vendor Costs/Fees Consider whether the project can be performed in-house Medical Records Outline (MRO) Nurse Consultants Trial Director and other trial software programs Train paralegals
3 Trial/Demonstrative Exhibits Prepare in-house Overhead Consider how to effectively staff file Utilize skills where appropriate Consider overhead when determining whether to take a case Will it pay the bills? Mock Trial and Jury Consultant Costs/Fees Perform them in-house Utilize law students or college students to gain feedback MEDICAL MALPRACTICE MECHANICS CLIENT INTAKE RISKS Red Flags Avoid the Plaintiff if: They have an agenda They have unrealistic expectations Are vengeful Are a know-it-all; Re-write the retainer agreement Are over-demanding Not credible/insincere Has already had multiple attorneys Procedural or statute of limitations headaches Missing medical records Inconsistencies in medical records and Plaintiff s story Undated records Spoliation of records. DO YOU WANT TO REPRESENT THIS CLIENT???? MEDICAL MALPRACTICE MECHANICS CLIENT INTAKE RISKS When representing a Defendant healthcare provider, consider the same analysis. Other items to consider when representing defendant healthcare provider: Background Employer Shareholder status/partnerships Privileges Prior lawsuits/disciplinary actions in ALL states Comparative negligence Insurance issues: Policy limits, Reservation of Rights, Coverage. MEDICAL MALPRACTICE MECHANICS COMPLEX ISSUES Multiple Defendants Very expensive to work up and try cases with multiple defendants. Pointing Fingers v. Unified Defense Settling Defendants Hospital as Defendant Many different potential causes of action More issues relative to privileged materials Many levels of staff/potential tortfeasors; will need standard of care experts for each specialty. Medical Malpractice Insurance Consent issues Determine whether there is a consent clause in insurance policy.
4 Limits of insurance Is it profitable? Reservation of Rights MEDICAL MALPRACTICE MECHANICS COMMON MED-MAL MOTIONS Motion to Dismiss Improper Parties Motion for Summary Judgment For Lack of Sufficient Expert Testimony Punitive Damages Motion to Compel Authorizations Personnel Files Preliminary Expert Affidavit IME/IPE Motion to Strike Claims Experts MEDICAL MALPRACTICE MECHANICS MEDICAL/PEER REVIEW PANEL Every licensed hospital and out patient surgical centers shall review the professional practices for purposes of reducing morbidity and mortality and for the improvement of the care of the patients See A.R.S All proceedings, records and materials prepared in connection with the reviews are confidential and not subject to discovery. See A.R.S See also Sun Health Corp. v. Myers, 205 Ariz. 315, 70 P.3d 444 (App. 2003); Yuma Regional Medical Center v. Superior Court In and For the County of Yuma, 175 Ariz. 72, 852 P.2d 1256 (App. 1993). MEDICAL MALPRACTICE MECHANICS ASSESSING DAMAGES Maximize Recovery Consider all potential causes of action against defendant provider; Past and future medicals, past and future loss of earning, past and future pain and suffering, loss of consortium. Is there a cause of action under the Adult Protective Services Act? A.R.S et seq. Consider all potential defendants - Deep pocket defendant; Consider coverage/policy limits; and Preserve critical evidence to maximize damages. MEDICAL MALPRACTICE MECHANICS ASSESSING DAMAGES Minimize Recovery Try to knock out baseless causes of action early May need to conduct some early discovery in order to accomplish this. If it is a multiple defendant situation, attempt to get your client dismissed early and/or prior to suit. Engage in motion practice to attempt and get certain claims dismissed Pain and Suffering Not permitted in wrongful death claim Punitive Damages Retain damages expert who will mitigate claimed damages
5 Life Care Expert Medical Expert to address life expectancy Do not rely on mortality tables alone. Obtain lien information MEDICAL MALPRACTICE MECHANICS ASSESSING DAMAGES Calculating Complex Damages Past medicals if related, usually taken at face value. Future medicals/costs Medical Experts, Life Care Experts Loss if Income (past and future)/potential for Employment Economist Expert Discounted to present value. Non-economic Damages: Pain & Suffering, Loss of Enjoyment of Life, Loss of Consortium. Proving Damages Utilize billing records, treating physicians, medical experts, economy experts, life care experts, and witness testimony. ADR and Trial Tips Don t overreach. You will lose credibility with the jury. Engage in private mediation with an experienced mediator who can understand complex medical issues. MEDICAL MALPRACTICE MECHANICS STANDARD OF CARE Medical malpractice is the failure to comply with the applicable standard of care. To comply with the applicable standard of care, a [health care provider] must exercise that degree of care, skill, and learning that would be expected under similar circumstances of a reasonably prudent [health care provider] within this state. See RAJI Medical Malpractice #1. See also A.R.S (1). Typically must prove this by way of expert testimony. Consider the restrictions and requirements under A.R.S You must set forth SOC expert whose specialty is the same as each person against whom or whose on behalf the testimony is offered. MEDICAL MALPRACTICE MECHANICS OPENING AND CLOSING STATEMENT STRATEGIES Opening Statement Set forth theme of case. Intertwine this theme throughout the entire case. Every fact you say that you will show MUST be backed by a document or witness testimony. Introduce your client, witnesses and experts and identify their qualifications. Know the pre-trial evidentiary rulings and don t come close to violating them. Not time to argue; time to set forth road map of your case. Deal with the bad facts! Attempt to incorporate into your theme. Make the bad facts your best friends. MEDICAL MALPRACTICE MECHANICS OPENING AND CLOSING STATEMENT STRATEGIES Closing Arguments Pound home your theme of the case! Argue how you proved your case or how Plaintiff could not prove his/her case. Remind jury who has the burden of proof. Time to suggest who is or who is not credible. Point out inconsistencies in records, witness testimony and expert opinions.
6 Circle back to the material set forth in opening and show the jury that you proved everything you said you would. Incorporate use of technology! Jury wants to see the actual record, the actual diagnostic studies, the actual witness, etc. MEDICAL MALPRACTICE MECHANICS VOIR DIRE TIPS GOALS Advance your case theme; Link it to the juror s life experiences; and Begin to form a rapport with the jury. Common themes of questioning Accountability What s a life worth? View on medical care in general; Tort Reform Specific injuries in the case/death Sympathy Photos Especially in pressure ulcer cases Consider making a brief statement of the case prior to voir dire questioning. MEDICAL MALPRACTICE MECHANICS EVIDENCE STRATEGIES AT TRIAL Tailor your evidence to the theme of your case. Reinforce theme of case through witness testimony both lay and expert witnesses. Present evidence so a lay jury will understand. Complex medical issues should be simplified so a jury can understand. Use charts and graphs as necessary. Juries appreciate the use of technology. They want to see, feel and experience the evidence. Be organized and keep track of what records/exhibits are admitted. Attempt to stipulate to medical records and other records prior to trial. Ensure confidential information is redacted from exhibits, as well as information that is subject to Motions In Limine. MEDICAL MALPRACTICE MECHANICS BATTLE OF THE EXPERTS WHO IS MORE CREDIBLE? Consider the following to get a leg up on the competition: Expert s Credentials/Qualifications Expert s Experience Did the expert assess Plaintiff/patient? Who is more articulate? Who presents better on the stand? Demonstrative exhibits; Power Point Presentation Obtain testimony from other proceedings, prior literature and prior reports and highlight inconsistencies or consistencies to bolster your position. MEDICAL MALPRACTICE MECHANICS MSJ IN MED-MAL CASES Court will grant Motion for Summary Judgment or Partial Summary Judgment if the moving party shows that there is no genuine dispute as to any material fact. See ARCP 56(a). Evidence is viewed in best light favoring non-moving party. Any dispute of material fact Motion denied. The more complex the facts/issues are, the less likely it is that the motion will be granted. Court does not make credibility determinations among witnesses.
7 MEDICAL MALPRACTICE MECHANICS - ERROR PRESERVATION TIPS Identify Motions in Limine throughout the discovery process and consider filing some early. Ensure that issues and objections are consistent in Pre-Trial Statement to avoid waiver. Even if Motion in Limine is denied, lodge objections at trial to preserve same. Request In camera inspections; Offers of Proof. Ensure objections are lodged relative to jury questions that are posed. Consider filing Motion for Directed Verdict to preserve issues for appeal. Also consider filing Trial Briefs to help educate judge and preserve issues for appeal. MEDICAL MALPRACTICE MECHANICS POST-TRIAL ISSUES Offers of Judgment Application of Costs Final Judgment Lien Satisfactions Notice of Appeal Appellate Process THE END