MISCELLANEOUS IDEAS REGARDING MEDICAL MALPRACTICE CASES

Medical malpractice cases are some of the more difficult liability cases we are asked to handle for injured clients. In these cases, words and phrases can often be of particular importance. For example, statements that combine common sense with ideas of negligence are powerful: “Caution and double checking is a part of good medical care.”

Another idea is when introducing a statement consider using rhetorical questions rather than statements. For example:

  • Why are we here? What did the doctor do wrong?
  • What would another doctor have done?
  • Why did the pediatrician choose to play Russian roulette with this child’s life?
  • What happens when medical people ignore danger signs?
  • Why didn’t they pay attention to the danger signals?

If possible, try to summarize the case in a short paragraph. For example:

“the doctor obviously made the wrong choice, and took the greatest risk. What’s the right choice? The lowest risk. You don’t have to be a doctor to figure that out. All you need is common sense.”

Consider using word associations as for example:

  • The baby needed intensive care and got intensive neglect.
  • Doctors should help us, not hurt us.
  • A doctor should test, rather than guess

Consider the questions in jury selection in medical malpractice cases with the goal of obtaining attitude answers.  Here are some open ended questions lawyers have used successfully:

  • Is what you do as a juror important for a waste of time?
  • Our old people really worth anything?
  • How many people feel as though there has been a lack of trust in our world?
  • Has anybody ever been in a position to bring a lawsuit but chose not to?
  • What does the phrase” running a medical stop sign” mean to you?
  • What is your definition of quality medical care?
  • How many of you check the Internet about your medical condition before you seek medical care?
  • What is a doctor’s primary responsibility in caring for patients?

These are a few examples of giving real thought to the words you use in these cases and how you express yourself, because words do count.

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PREPARE IN ADVANCE FOR NEW CLIENT CONFERENCES WITH A CHECKLIST

A common mistake lawyers make in our communications with people is to assume that people understand what we have said or already know something that was left unsaid. Too often in our jury trials we use abbreviations or acronyms assuming everybody understands their meaning when they don’t. The more experience we have and the more we know about a subject, the greater our tendency to forget to clearly, completely and simply explain it to others.

When we are meeting with new clients it is important that we give a full and complete explanation of what to expect. Not only is it an objective for “informed consent” on our part, it is an obligation we have to prepare our clients for what’s ahead. Clients who are contemplating hiring us are also entitled to know what to expect. After numerous conferences with clients and potential clients it is easy for us to forget to give the full explanation each new person is entitled to receive from us. The best way to deal with this is with a checklist for each type of case we typically handle. By referring to it we can be assured we have covered the major points the client should know about.

The following is a general outline or checklist regarding a medical malpractice case. You should modify and revise it for your jurisdiction and law practice.

Written contingent fee agreement

Washington state legally requires that all contingent fee arrangements with the client be by written agreement.  Even before this became a legal requirement, our firm’s policy was to have a signed written fee agreement. The agreement should spell out all of the relevant particulars of the arrangement. It should be reviewed with the client. The fee arrangement with the client should be outlined in the agreement and clear language. An explanation as to why the fee in a medical malpractice case is generally more significant than that in of other cases is helpful to the client. The length of preparation and trial, as well as the fact the lawyer is advancing the costs are important factors in this regard.

Expenses & costs

In reviewing the written fee agreement it is important to explain the provision relating to out-of-pocket costs. The client should understand that the out-of-pocket costs for fees to medical experts & court reporters, the expense of  obtaining copies of medical records and payments made for necessary documents or materials is always very substantial in medical malpractice cases.In our state, we would probably advise that once a case has been accepted the average out-of-pocket costs incurred to the time settlement discussion averages between $100,000 and $250,000. The average out-of-pocket costs incurred from the time the case begins to the completion of a jury trial averages between $300,000 and $500,000 depending upon how long the case takes to try and can be more in some cases.

We tell the client that we realize that almost all of  our clients are unable to pay for these out-of-pocket costs. Our practice is to pay these expenses for our clients and deduct when settlement is made or the money collected. The client should be told they will be given full particulars in this regard.

Our policy is to send copies of the bills as well as other materials generated in the case to our clients. If they decide they would rather not receive this kind of information they should advise us.

Preparation Required

The client should be told that the preparation of malpractice cases involves collecting all of the relevant medical records from both doctors and hospitals as well as any other treating health care provider. The records must be organized and reviewed by qualified medically trained people who index and summarize relevant records for the lawyer. Consultation with qualified medical experts after their review of relevant records is essential to determine liability and medical injury evaluation. This evaluation by the lawyer  based on this information is the factor which determines whether the case has sufficient merit to proceed. The lawyer will analyze the potential settlement value of the case and determines the plan handling of the case generally. The evaluation process is a continuing and ongoing one as more information is obtained. At all stages it will involve consultation with the client.

Obtaining relevant information

The discovery of relevant information about the case involves the taking of sworn testimony (deposition) of the involved healthcare providers as well as the patient and family members. It also involves taking the sworn testimony of the medical experts for both the patient and the defendants in the case. This is both very time-consuming and expensive because the medical experts are entitled to a fee for their time and the court reporter charges for recording the testimony and providing a typed copy to the attorneys. We will prepare you for your deposition and be with you when it takes place.

Review important points

The client discussion should include a review of some of the following factors that apply to a medical malpractice case:

  • There is a time limit for filing a malpractice case called the  “statute of limitations”
  • The law requires sworn testimony from a qualified medical expert that malpractice has occurred or the case will be dismissed before ever going to trial. The defense has an almost unlimited source of experts to testify that there was no malpractice. The plaintiff has difficulty finding qualified medical experts, especially local ones. Finding qualified medical experts is one of the more difficult challenges the lawyer will perform for the client.
  • It is important the client knows that statistically 80 to 90% of all malpractice cases that are tried to a jury are lost in this state. There are no guaranteed malpractice case results.
  • It is not uncommon to have doctors and nurses to cooperate in providing a defense to the defendants. Sometimes proving the truth can be difficult.
  • Malpractice cases require proof of two essential factors: (1) there was a failure to meet the standard medical care required in this case i.e. “negligence” and (2) this failure to comply to the standard medical practice was a cause of the harm done to the patient. Therefore, not only does the patient have to prove there was negligence, the patient has to also prove that the negligence was in fact the cause of the harm complained of. It is not uncommon, in medical malpractice cases, for the defendant to maintain that even if there was a breach of medical care it wasn’t the reason for the outcome and therefore they are not responsible legally.
  • Patience is required by the client and medical malpractice lawsuits. The average time, from our acceptance of the case, to the time the case has been settled or tried is about 1 ½ to 2 years. This is due to the court system involving the scheduling of cases as well as the time required to collect all of the information necessary.
  • The majority of malpractice cases are settled out of court, but there is no guarantee that a case will be settled. Every case should be approached as if it will go to trial.
  • On the other hand, in virtually every case, there will be a settlement discussion with the defense and their insurance company. This normally is in the form of a joint meeting called “mediation.” This process involves a trained and knowledgeable person known as the mediator who conducts the discussion. Usually, this is done by having the different sides of the case in separate rooms and the mediator going back and forth. When a mediation is scheduled we will spend sufficient time with you to completely review the process and prepare you for it.

Conclusion

This obviously is an incomplete outline of what the lawyer might discuss with a client or a potential client at the initial conference. However, it is important to review the key facts with a new client or potential client in a medical malpractice case. Unhappy clients are often the result of our failure to prepare them and fully inform them as to what to expect in these cases. Having an existing checklist for each case you commonly handle the office is an effective way to make sure there has been full and complete communication.

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SOME MAGIC WORDS & PHRASES FOR PERSUASION

“Words are, in my not-so-humble opinion, our most inexhaustible source of magic”

(J.K. Rowling Harry Potter & The Philosopher’s Stone)

For many years the marketing and sales industry has researched communication as it relates to sales and persuasion. Psychologists have been involved in studies about words, language and aspects of communication as well. We’ve learned that some words have significance because of the  marketing research and others have been studying communication issues involved. 

Kevin Hogan has taught persuasion and influence at the University of St. Thomas management Center and is a frequent media guest as well as an author and lecturer on the subject. He has written and spoken about what he calls “seven magic words of persuasion.” Here they are:

  1. Because: It turns out, the likelihood of getting people to do the things you asked can be substantially increased by using one simple word in your request: “because.” One illustration involved Ellen Langer, a professor of psychology at Harvard, who conducted an experiment that demonstrated the power of the word. She had students, participating in her study, cut in front of a line of people waiting to use a copy machine. The asked to be allowed to go in front using different words, but not giving a reason for it. Others did the same but gave reasons. The study found that when they used the word “because” irrespective of the reason given, it had a significantly higher consent than those that did not use the word. There was a 60% compliance without using “because” but, a 93% compliance when the word was used. These and other studies have characterized the word “because” a powerful word.

In our trial work we need to remember the importance of always offering a reason for what we are asking be done. In our jury selection it isn’t enough to ask to wait until they have heard the full story about something before making up their minds. We need to give them a  reason why that is the right and fair way to consider an issue. In cross examination if we are critical of something, we shouldn’t assume the jurors will understand and agree. We should add “…because” and the reason.  That’s why we should always give the jury a good reason for what we ask them to do instead of just asking for a result. When we suggest an amount for a verdict we need to add reasons why it makes sense to do so and not just throw out the number.

  1. Imagine: This is a very powerful word and is often referred to in psychology as a “trance” word. When we ask someone to imagine something the process involves temporarily suspending the conscious mind to explore the idea. This results in the rational mind’s critical evaluation not functioning at that moment and the subconscious mind being accessed. The subconscious mind does not distinguish between real and imagined ideas or visions. When someone imagines they create an impactful reality to the subconscious mind.

When we ask jurors to imagine the ways in which a verdict in favor of your client will confer benefit not just on the client but on each of them as well as the community, we activate their subconscious mind with the images involved. If we ask jurors to imagine what our health care would be like if we didn’t have standards of care that are enforced, we trigger a reaction that doesn’t involve rational analysis. Imagine is a magic word in communication.

  1. Now: Everyone wants things of importance done right now. Yesterday is over and tomorrow is too late. Immediacy is what everyone wants. Now is exactly the right moment to start. We all want instant gratification. For example, studies show 80% of the people will abandon trying to watch a video if it takes more than thirty seconds to load. Suggesting the importance of doing something now rather than later or that taking a particular action now will provide specific benefits is a proven motivator.
  1. Please: Saying “please” is not merely fulfilling a social norm, but has an inherent power as well, when sincerely said. It shows respect and consideration for the other person as well as acknowledging their power of control. It communicates rapport, a relationship and respect. When we demonstrate these subconscious ideas to others, they are more willing to return the same. When we are polite and say please in a genuine way, people are more likely to respond in a favorable way to you.
  1. Thank you: Even though these are just words, there is something magic about their effect when said in genuine manner. It not only conveys our gratitude, but is an acknowledgement the other person matters. Laura Trics gave a TED talk “Remember to Say Thank You” in which she argued that those two words can be incredibly powerful especially when the person you thank isn’t expecting them or needs to hear them. She makes the point that most all of us want and expect to be thanked for the things we do. Being appreciated really motivates us, both at work and life. Second, she says it is important in our relationships to say thank you rather than assume the other person knows you are thankful.
  1. Names: Using a person’s name has a unique appeal to the person you are speaking to. Dale Carnegie wisely noted that “A person’s name is to him or her the sweetest and most important sound in any language.” Using a person’s name does have “magic” power more than most people realize. The name we were given becomes our tag and when we hear it we are on alert regarding the speaker. It’s ingrained in us. Watch charismatic people. The first thing they ask for is the other person’s name. It will be the last thing they say when they leave. They will use the name frequently in conversation such as: “So Mike, tell me what brings you here?” “Does your family live here, Jane?” and so on.  A person’s name has power over them; more than you might think.

Remember this when you are dealing with the people in the court room who have significant power like the clerk, the bailiff and court reporter. It is unlikely you would be allowed to call jurors by name, but it may be appropriate to refer to their designation by jury chair in the jury box. For example “can you please turn that so that juror number twelve and everyone in the back can see?” Using someone’s name has a magic to it for the person involved.

  1. Control: We all have a need to feel like we are in control of our situations and and our lives. When we feel we are out of control we feel threatened. A sense of being in control makes us less anxious and more confident. When we communicate the idea that we are in control and not other person, the normal response of the other person is to take a defensive position and an contrary attitude of mind. Making the other person feel like they are in charge or in control of the situation empowers them to respond more favorably to our recommendations and proposals. Acknowledging the power of the other person to control their decisions encourages a more compliant attitude.

Gerry Spence has often told jurors they are in control and they have all the power to decide the case. He has used the analogy of the jurors having the power to  write a check for any amount they want. In the movie Verdict Paul Newman, in the role of a plaintiff’s attorney, tell the jury that “But today you are the law. You ARE the law. Not some book… not the lawyers… not the, a marble statue… or the trappings of the court. Today you are the law.” When we argue something to the judge we don’t say “You are compelled by the law to do this” or “ you have now choice.” Human nature results in an exactly opposite reaction and a competitive refusal to be controlled by  someone else.  Instead, we acknowledge the power of the court to make any ruling they wish, but offer  the reason why they should rule in your favor. These are examples of empowering other people to do what you are asking them to do.

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