Medical Malpractice: Keys to Pretrial Success National Business Institute April 2011

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1 Medical Malpractice: Keys to Pretrial Success National Business Institute April 2011 Jeffrey S. Hunter, Esq. One North Central Avenue Suite 900 Phoenix, Arizona Telephone: (602) Fax: (602) Web Site:

2 HOW TO BUILD A MEDICAL MALPRACTICE CASE Jeffrey S. Hunter, Esq. Medical Malpractice cases are expensive. They are expensive for Plaintiffs and Defendants. The key to successfully litigating these cases is EARLY recognition of the THE MAIN ISSUES in the case. In the vast majority of cases, there are two to three questions for which the answers will result in a jury of verdict of millions or zero. Whether you are representing the Plaintiff or a Defendant healthcare provider, effectively building the case is the key to success in the trial. I. What is Medical Malpractice 1. Statutory Definition, A.R.S (2): An action for injury or death against a licensed health care provider based upon such provider s alleged negligence, misconduct, errors or omissions, or breach of contract in the rendering of health care, medical services, nursing services or other health-related services, without express or implied consent including an action based upon the alleged negligence, misconduct, errors or omissions or breach of contract in the collecting, processing or distributing of whole human blood, blood components, plasma, blood fractions or blood. A licensed health care provider is defined as a person, corporation or institution licensed or certified by the state to provide health care, medical services, nursing services or other health-related services and includes the officers, employees, and agents thereof working under the supervision of such person, corporation or institution in providing such health care, medical services, nursing services or other health-related services. A.R.S (1)(a) 2. Bad outcomes alone are not sufficient- there must be more. 3. Elements of the Medical Malpractice Case. A.R.S A Breach of the 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 4th Medical Malpractice #1. See also A.R.S (1). 2. Causation The Defendant(s ) negligence must be A Proximate Cause, but not necessarily the only cause, of damage to the Plaintiff. See A.R.S (2). RAJI Medical Malpractice #1 Causation is a question of fact for the jury unless reasonable persons

3 cannot conclude that the plaintiff had proved this element. Barrett v. Harris, 207 Ariz. 374, 378, 86 P.3d 954, 958 (App. 2004). Only need to present enough evidence for the jury to reasonably infer the negligent conduct was a proximate cause. Barrett v. Harris, id. Plaintiff does not need to show what would have happened in the absence of negligence; only need show what happened with the negligence. Tennen v. Lane, 762 P.2d 1031 (App. 1995). The testimony of a co-defendant that he/she would have done nothing different even if the defendant had acted within the standard of care will not necessarily defeat plaintiffs causation theory. Estate of Reinen v N. Ariz. Orthopedics, Ltd., 198 Ariz. 283, 9 P.3d 314 (2000) Theory 1: More likely than not/within in a reasonable degree of medical probability Theory 2: Arizona has adopted the loss of chance doctrine in Thompson v. Sun City Community Hosp., Inc., 141 Ariz. 597, 688 P.2d 605 (1984). Under Thompson, a plaintiff need only introduce evidence that the defendant s negligence increased the risk of injury or death. Evidence that there would have been a substantial better chance of recovery is sufficient for causation to go to the jury. Thompson is applicable to a limited set of cases, generally, the failure to act cases. because the protection of the chance interest was within the range of the duty breached by defendant and the harm which followed was the type from which the defendant was to have protected the plaintiff, the jury may be allowed to consider the increase in the chance of harm on the issue of causation. If the jury finds that defendant s failure to exercise reasonable care increased the risk of the harm he undertook to prevent, it may from this fact find a probability that defendant s negligence was the cause of the damage. Thompson at Damages A. Economic: a. Medical Expenses- Past and Future You may seek an award for all past medical bills notwithstanding that insurance may have paid a discounted rate. The lienholder is generally not entitled to be reimbursed for what was billed, only what was paid.

4 b. Loss of Earning- Past and Future B. Non-Economic: a. Pain and Suffering- Past and Future b. Loss of Consortium Past and Future C. Life Expectancy : Mortality tables will not tell the entire story. A Plaintiff with multiple co-morbid conditions will have a shorter life expectancy. The injury incurred may shorten the life expectancy. Life expectancy significantly impacts the economic damages. D. Liens: You must know at the start of the case the applicable liens. These liens could be worker compensation, AHCCCS, Medicare (Medicare, Medicaid, and Schipp Extension Act, and MSA), insurance companies, indemnity/subrogation, ERISA. 4. Can only sue based on grounds enumerated in ARS ARS express precludes suing health care provider for assault and battery, breach of contract unless an express contract, and neglect, abuse, or exploitation of a vulnerable person unless pursuant to ARS II. Statute of Limitations 1. For a medical malpractice, two (2) years upon accrual of cause of action (ARS ) 2.Discovery rule allows the suit to be filed within two (2) years after the Plaintiff knew or should have known that the malpractice occurred. See Mayer v. Good Samaritan Hospital, 14 Ariz. App. 248, 482 P.2d 497 (1971). 3. Any a cause of action for a minor is tolled until age 18 (ARS ) 4. There is no Statute of Repose in Arizona III. The Parties A. The Plaintiff

5 1. Plaintiff Interview - Do you want to represent this person? - Listen to the person - Develop of plan and communicate to the person - Fully explain what you are doing and why/potential problems with the case - Explain fee agreements/costs - Do not give an opinion of the case- its way to early to have any opinion - Ask about sources of potential lien 2. 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 - Family splits/issues - Not likeable person - Not credible/liar - Has already had multiple attorneys - Procedural/statute of limitations headaches 3. Obtain all the Plaintiff s pertinent records and READ all of them. B. The Defendant - Look for inconsistencies between the records and Plaintiff(s ) story - Missing records - Undated records - Progress notes with no time entry and only one health care provider s notations - Exploitation - Tampered Records - Are there other health care providers that may be negligent? 1. Same analysis as above if representing the Defendant 2. Find out everything you can about the Defendant(s). Learn their background, employer, staff privileges, prior lawsuits/disciplinary penalties etc.

6 3. Employment, shareholder status, partnerships etc is important in determining all sources of insurance coverage available. 3. How many Defendants - Comparative negligence - You can have too many Defendants 4. Insurance Coverage IV. Identifying the Medical Issues A. The Expert Witness - Obtain declaration sheet - Reservation of rights - Any potential coverage issues 1. ARS defines the expert witness: A. In an action alleging medical malpractice, a person shall not give expert testimony on the appropriate standard of practice or care unless the person is licensed as a health care provider in this state or another state and the person meets the following criteria: 1. If the person against whom or on whose behalf the testimony is offered is or claims to be a specialist, specializes at the time of the occurrence that is the basis for the action in same specialty or claimed specialty as the party against whom or on whose behalf the testimony is offered. If the party against whom or on whose behalf the testimony is offered is or claims to be a specialist who is board certified, expert witness shall be a specialist who is board certified in that specialty of claimed specialty. 2. During the year immediately preceding the occurrence giving rise to the lawsuit, devoted a majority of the person s professional time to either or both of the following: (a) The active clinical practice of the same health profession as the defendant and, if the defendant is or claims to be a specialist, in the same specialty or claimed specialty. (b) The instruction of students in an accredited health professional school or accredited residency or clinical research program in the same health

7 profession as the defendant and, if the defendant is or claims to be a specialist, in an accredited health professional school or accredited residency or clinical research program in the same specialty or claimed specialty. 3. If the defendant is a general practitioner, the witness has devoted a majority of the witness professional time in the year preceding the occurrence giving rise to the lawsuit to either or both of the following: (a) Active clinical practice as a general practitioner. (b) Instruction of students in an accredited health professional school or accredited residency or clinical research program in the same health profession as the defendant. - The expert witness qualifications pertain likewise to the a health care organization ARS (B) - The expert can be disqualified on other grounds. ARS (C) - Frye vs. Daubert challenge - The expert s pay cannot be contingent upon the outcome of the case. ARS (D) 2. What Experts? - Standard of Care - Causation - Damages 3. Limitation on Expert Witnesses - Pursuant to Rule of Civil Procedure 26(b)(4)(D), the parties are limited to one expert per side per issue. This is a presumption only. You can have additional expert per issue upon demonstrated good cause. - Defendants are not expert witnesses pursuant to ARCP 26(b)(4)(D) and can testify regarding standard of care issues. - A causation expert s testimony is not inadmissible merely because the

8 V. Cause of Action Jeffrey S. Hunter, Esq. standard of care is reference. See Pipher v. Loo, 212 P.3d 91 (App. 2009). The reference may be allowable if such reference is a predicate to the causation opinion. - Independent expert refers to the person retained for testimonial purposes and who is not a witness to the facts giving rise to the action. The focus is on the relationship between witness and the party, not on the witness intellectual sophistication. See Department of Revenue v. Superior Court of the State of Arizona, 938 P.2d 98 (App. 1997). - Note Federal Rule 26(b)(4)- this is the companion rule to Ariz. Rule 26(b)(4). The comment to the rule states that the rule is not applicable to an expert whose information was not acquired in preparation for trial but rather because he was an actor or viewer with respect to transactions or occurrences that are a part of the subject matter of the lawsuit such an expert should be treated as an ordinary witness. - Improper treatment - Failure to treat - Failure to communicate (ex. internist/hospitalist) - Nursing malpractice - Vicarious Liability - Physicians with staff privileges only are generally not agents of hospitals. Gregg v. National Medical Care Services, Inc., 145 Ariz. 51, 699 P.2d Apparent Agency - Must demonstrate that hospital represented physician as its agent, patient relied on manifestation of agency, and was reasonably justified in doing. Reed v. Gershweir, 160 Ariz. 203, 772 P.2d 26 (App. 1989). - Example, where ER group agreed to provide services to hospital, hospital provided equipment and rooms, hospital promulgated policies and procedures that the doctors had to be followed, and the hospital could terminate the doctor services, patient had no choice as to doctor, and doctor chosen by hospital, apparent agency demonstrated. Barrett v. Samaritan Health Services, Inc. 153 Ariz. 138, 735 P2d 460 (App. 1987) - Applicable usually to emergency room physicians, radiologists,

9 anesthesiologists, and hospitalists. - Non-delegable duty - Informed Consent - Borrowed Servant Jeffrey S. Hunter, Esq. - Arises when an employer delegates (1) the performance of a special duty to an independent contractor, or (2) when the activity to be performed is inherently dangerous. Ft. Lowell-NSS Ltd. Partnership v Kelly, 166 Ariz. 96, 800 P.2d 962 (1990); Wiggs v City of Phoenix, 198 Ariz. 367, 10 P.3d 625 (2000) - Right of control analysis. See Ruelas v. Staff Builders Personnel Services, Inc., 199 Ariz. 344, 18 P3d 138 (App 2001) - Temporary staffing agencies - Res Ipsa Loquitor - Emergency Services ARS EMTALA 42 USC 1995dd - Punitive Damage Claims - The deep pocket defendant VI. Litigation Issues 1. Venue/Jurisdiction 2. Defendants -comparative negligence -vicarious liability 3. Preliminary Expert Affidavit- ARS Must be filed with the Initial Rule 26.1 disclosure statement - Must be filed by the Plaintiff and a Defendant who has name a non-party at fault - Must include : - Experts qualifications - Factual basis for opinions - The acts, errors, and/or omissions that constitute the

10 4. Discovery- Jeffrey S. Hunter, Esq. deviations from the standard of care - The manner in which the deviations caused an injury - The opinions in the affidavit may be supplemented by timely disclosure. If supplemented, the affidavit can only be used for impeachment of the expert and only if the facts have not substantially changed and the facts were known to the expert. - Interrogatories- ARCP You are limited to 40 unless stipulation for more or Court order - Inclusive within the 40 are the uniform interrogatories - Use sparingly and save as many as you can for use after depositions have been completed - Request for production- ARCP 34 - You are limited to 10 distinct items or specific categories of items - Are entitled to additional upon showing of good cause or stipulation - Request for Admissions- ARCP 36 - You are limited 25 unless stipulation or good cause - Use to obtain admissions favorable to your case on factual issues of importance - Service with an interrogatory requiring the party to state the facts forming the basis for denying any request for admission - Requests for admission are not necessarily appropriate for opinions, that is, admit that a party is negligent. -Depositions- ARCP 30 - You limited in terms of time presumptive four hour limit - Matter of right to take the parties

11 - You are limited in the number- must identify those depositions you wish to take in the comprehensive pre-trial memorandum otherwise could be precluded from taking the deposition. ARCP 30(a) specifies that no other depositions can be taken other than the parties unless by stipulation, order of the court based on good cause, or an order of court following the Rule 16 conference. - Know your goal; why are you taking this deposition? - Get all opinions and the basis for the opinion from the expert witness - Independent Medical Examinations ARCP 35 - You may object to the Defense selected expert ARCP 35(c)(2) - May be videotaped upon good cause only - There no right as a matter of law to an IME; must be good cause

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