Anatomy Of A Lawsuit Part III: Motion Practice, A Shock To The System

My last two blog entries addressed the beginning and middle portions of a lawsuit—from the initiation to filing an answer to the lawsuit, the 120-day expert requirement, written discovery, depositions, expert witnesses, and mediation. Now we’ll examine the motions that can affect the outcome of your case.

Motion Practice: A shock to the system

There are numerous motions that can be filed throughout the course of litigation. The impact of these motions on the outcome of your case vary significantly. But motion practice is an important component to the litigation of any case and can result in your side gaining the upper hand, or even a dismissal of the case short of trial in certain circumstances.

Some motions are discovery-related, like seeking a court order to compel production of certain documents or information. While discovery motions may not lead to a dismissal of the case, they can be significant in building your evidentiary defense to the case. For example, in a case where the plaintiff is seeking recovery of lost wages, personnel files from prior or current employers might be highly relevant to such a claim, particularly if they show that the plaintiff had serious disciplinary issues or demonstrate that she was terminated for reasons other than the care and treatment in question.

Another example is social security disability records. In a case where the plaintiff is claiming disability as a result of your alleged negligent care, the fact that he or she sought disability benefits three years prior for a similar issue may be critically relevant to your defense of a damages claim.

In these examples, if the plaintiff refuses to produce such records or an authorization for your attorney to obtain such records, a Motion to Compel would be necessary to obtain these potentially important documents to assist in your defense of the matter.

There are other motions which can have an even more significant impact on the outcome of a case. One example is a Motion to Strike an expert.

There may be circumstances–often following the deposition of plaintiff’s expert–where it becomes evident that the expert is not truly qualified to offer opinions on the topics of the case. For example, he or she has never actually performed the procedure in question, or hasn’t performed it in several years. Another example would be a physician who offered seemingly clear cut opinions in the report about causation, but when pressed during the deposition, the expert wavers on those opinions or admits that such opinions are not applicable to the case at hand.

In the first example, it would be appropriate to file a Motion to Strike the expert altogether because the person is not qualified. In the second example there might not be a basis to strike the expert’s opinions in their entirety, but there is for those portions of the expert’s testimony or opinions that do not hold water.

As you can imagine, the exclusion of an expert can be fatal to a plaintiff’s case, especially if that is the only expert. Likewise, limiting an expert’s opinions on critical areas of the case, like causation, can be devastating to the plaintiff’s case. In either scenario, a successful Motion to Strike can provide more leverage for a more favorable settlement, give your case a significant advantage at trial, or result in dismissal of the case altogether.

There are other equally important motions, also called “dispositive motions.” They are called dispositive because, if granted by the judge, they can result in the termination of the plaintiff’s case short of trial. One type of dispositive motion is a Motion to Dismiss, which is the procedural result when the plaintiff cannot make a preliminary showing that the case has merit. Motions to Dismiss can be based upon a number of reasons, but the most common for health care providers is when the plaintiff fails to provide a 120-day expert report as required by Chapter 74.

A Motion for Summary Judgment is another type of dispositive motion that is a substantive ruling that the case does not have sufficient facts to warrant a trial so that the defendant is entitled to judgement as a matter of law. There are two types of summary judgments: a “traditional” and a “no-evidence.”

The traditional one requires the use of evidence to prove that you should prevail as a matter of law. One example could be deposition testimony by the plaintiff’s expert that defeats the plaintiff’s causation theory.

A no-evidence motion can be filed after adequate time has passed to litigate the case without presenting any evidence and simply asserting that the plaintiff cannot meet her burden on one or more elements of her claim. The court typically grants the motion, unless the plaintiff produces evidence that raises a genuine issue of fact.

Truth be told, while dispositive motions can and do get filed in medical malpractice cases, most often they will not be granted in a manner that ends the entire case because both sides typically have experts supporting their case—which almost invariably creates a fact issue that warrants a trial. Cases that do not settle, therefore, most often end up going to trial, which will be the subject matter of my fourth and final blog entry in this series.

Kimberly Bocell is a former registered nurse whose law practice is focused on assisting healthcare providers in all facets of health law, including defending health care providers in medical practice litigation and in front of their respective professional boards, as well as assisting with practice issues, business disputes, HIPAA compliance and a host of other health law areas.

Posted in Expert Opinions.