Anatomy of a Lawsuit Part II: Experts, Mediation, And Other Relevant Factors

My last blog installment, “Anatomy of a Lawsuit,” addressed the first part of the litigation process: initiation of the lawsuit, filing your answer, the 120-day expert requirement, written discovery, and depositions of the parties and fact witnesses. This blog entry picks up where we left off, addressing experts (designation and depositions), mediation, and other factors that will play into your case. The third, and final, entry will address dispositive motions and other motions impacting the outcome of your case, and the trial process.

Experts: The “Heart” of your case

Aside from preparing for and giving your deposition testimony, the most important aspect of defending against a medical malpractice lawsuit is finding a qualified, quality expert to assist in defending your care.

To prove their case, plaintiffs must retain at least one qualified expert to opine on the standard of care, that you breached that standard, and that your breach caused the plaintiff to suffer damages. Likewise, you will need at least one expert to address those issues. And while any defendant healthcare provider is an “expert” in his or her area of practice, it is important to retain an independent and unbiased expert to rebut the opinions of plaintiff’s hired experts.

In many cases, only one expert – a standard of care expert – is needed to assist in defending a healthcare liability claim. Such an expert must practice in the same or similar area as the defendant and must be familiar with the standard of care applicable to the issues in the case. For example, if the case involves allegations of a botched hip replacement, then you would want an experienced orthopedic surgery expert to explain to a jury why your performance of the hip replacement, and all associated care, was appropriate.

If, however, the case involves complicated issues regarding the cause of the alleged damages or whether the plaintiff is even “damaged” in the first place, then you will also want a quality causation and/or damages expert to offer their opinion on such issues. For example, if the case involves allegations that your delay in delivering a baby caused a hypoxic brain injury, then you’ll want an OB/GYN and perhaps a pediatric neurologist to provide their views on the cause of the baby’s alleged brain injury. You may also want to consider a placental pathologist to discuss problems with the placenta that might have affected the child’s outcome.

Another example would be a case where a surgical complication occurred, but no damage resulted. For example, a patient suffered an eye injury as a result of sinus surgery but the injury resolved and the patient is back to normal. You might want an ophthalmologist to explain to the jury that the eye injury was transient, in addition to an ENT expert to state that the doctor met the standard of care and that the injury is a known risk of the procedure.

While your attorney will identify and retain the proper experts for your case, your input – as an expert yourself regarding the case issues and the areas that need to be addressed will help guide your counsel in finding strong experts to support your defense.

After both parties have identified and disclosed their expert witnesses, your attorney will take the depositions of the plaintiff’s experts, and opposing counsel will most likely (but not always) take the depositions of your experts. Like with your deposition, your attorney will spend the necessary time preparing your experts for deposition, and will want your input on deposing the plaintiff’s experts.

Mediation: A possible “Cure” for your case

After the party, fact witness, and expert discovery process has been completed, the case will be ready for mediation. In Texas medical malpractice cases, mediation is almost always required by the Court. The majority of medical malpractice cases resolve via settlement, either through the formal mediation process or informal settlement negotiations. In Texas, however, most physicians’ liability insurance policies have a “consent clause” that requires the physician’s consent before the insurance carrier can try to settle the case.

A lot goes into consideration when deciding whether to consent to settle your case, and if so, how much is a “reasonable” amount to settle the case. Before formal mediation, your attorney should provide you a full case evaluation that may include a summary of discovery/depositions, the experts’ opinions, and a detailed analysis of the liability, causation, and damages issues. It may also include a predicted verdict range, based upon the amount of damages claimed by the plaintiff.

A damages analysis includes economic damages, such as medical bills, lost wages, future care, or funeral expenses, as well as non-economic damages, which include pain and suffering, mental anguish, and loss of consortium. Non-economic damages are capped in Texas at $250,000, if no hospital or other healthcare entity is involved. If such an entity is involved, then plaintiff would be allowed to recover an additional $250,000 for the alleged negligence of that entity.

You should have a long talk with your attorney about the settlement pros and cons before deciding whether to consent. One consideration is a report of the settlement to the National Practitioner Data Bank. Any indemnity money paid on behalf of a physician is reported to the Data Bank, along with a description of the underlying claim, which is then available to future hospital credentialing/privileges committees and liability insurance carriers.

The impact this may have on a physician’s career is highly dependent upon the amount and circumstances of the settlement, among many other factors, but is always something to at least consider and discuss with your attorney. Other considerations include the impact a settlement may have on future insurability, reporting to the Texas Medical Board, as well as the time away from the office required for attendance at trial – typically at least a week. On the other hand, many physicians believe so strongly in their care that no resolution, short of trying the case to a verdict, is acceptable. In that instance, consent is often withheld. There is usually no “right” answer when weighing these issues, but with the help of counsel and your understanding of the case issues, you can reach an acceptable decision.

The mediation process itself is fairly straightforward. Mediation is conducted by a certified mediator and typically takes a day with the requirement that all of the parties, their attorneys, and insurance representatives attend. There may be an “opening session” where counsel for all of the parties makes a statement to the other side (similar to an opening statement at trial) and argues the merits of their case. After the opening session (or if the opening session does not occur), the parties will be separated into different rooms. The mediator will then go from room-to-room discussing the case issues and sharing offers and demands between each side.

One of two things will happen at mediation: (1) the negotiations will ultimately lead to an agreed settlement amount that both sides can “live with,” or (2) no agreement is reached. If the latter occurs, then there is always the possibility for continued “informal” negotiations between the parties – either with or without the help of the mediator – until an agreement is reached.

If not, then the case goes to trial unless it gets resolved through a number of different motions that can be filed before trial. We’ll discuss that next.

Kimberly K. Bocell, a former registered nurse, is a shareholder at Dallas’ Chamblee, Ryan, Kershaw & Anderson, where she represents healthcare providers in all facets of health law.

Posted in Expert Opinions.