Category: Legal Advice

What is my medical malpractice case worth?

When a prospective client first calls to discuss whether he has a medical malpractice case I have to make a preliminary decision about the potential value of the case. Obviously, questions about the value of a malpractice case also come up at the tail end of a litigation, when we reach the resolution phase of a matter and begin negotiating. At the outset, when I estimate the potential value of a case I am simply guestimating whether a successful outcome will likely justify the time and expense investments required to prosecute the file. When estimating the value of the case at the end of a litigation for clients, I am trying to come to a reasoned assessment about a case’s true value. I have the benefit of much more information at the end of a litigation than I do when a client first calls me on the telephone, so I am in a better position to reach conclusions and give clients more guidance about the value of a case at that point. Nevertheless, at best case valuation is a process that involves judgment and reasonable minds can differ about issues involving judgment. Also, different clients have different objectives, money means different things to different people and individuals differ in their tolerance for risk. All of these things have to be taken into consideration when discussing how best to resolve a malpractice case.

Questions of value that come up when a malpractice case is screened.

The question of value comes up when attorneys screen medical malpractice cases because before a lawyer decides to meet with a prospective client and open a file he must make an initial determination that the case is financially viable. Click here for an article that discusses financial viability as it relates to the issue of case screening in more detail.

In the majority of cases that I screen over the telephone, it appears that a prospective client has been the victim of negligent care, but the injuries sustained do not justify the time and expense of a medical malpractice lawsuit. Medical malpractice claims rarely settle without a lawsuit and malpractice litigations only settle if it is clear to all parties that proceeding to trial will create a substantial risk of a verdict against a defendant physician. Most of the time a case has to go through almost all of the discovery portion of a litigation for a defense attorney to be in a position to estimate the risk of loss and exposure the insurance company and defendant physician will face at trial. This is because in medical malpractice cases, issues of liability, proximate cause and damages are all the subject of expert opinions. Before experts formulate their opinions, parties to the lawsuit must engage in discovery to uncover evidence experts will base their opinions on. After factual discovery is complete, experts write reports setting forth their opinions. Experts are then deposed so that their opinions can be vetted and challenged in additional discovery proceedings. For all of these reasons, malpractice cases almost always involve very significant out of pocket expenses and a large commitment of attorney time to a law firm. To stay afloat, law firms who represent medical malpractice plaintiffs must screen cases that take these business realities into consideration. Almost always, a firm can only litigate a medical malpractice case if the negligence of the defendant physician caused a permanent injury that will have a significant impact on a patient’s life.

Questions of value that come up at the end of a malpractice litigation.

After a case goes through discovery, the question of value comes up again during the resolution phase of a lawsuit. Damages in medical malpractice cases are usually broken down into economic and non-economic loss. Economic loss includes financial losses resulting from the negligence of the defendant and typically include past and future lost wages, medical expenses, costs incurred related to obtaining replacement services previously provided by a disabled malpractice victim and costs related to services, equipment and materials used to mitigate the consequences of malpractice. Non-economic loss includes damages awarded by the jury for disability, pain and suffering and loss of enjoyment of life.

The significant difference between economic and non-economic loss is that an attorney is entitled to ask a jury for a specific dollar value on claims of non-economic loss. Thus, if a malpractice patient suffers $1.5 million in lost wages and $200,000 in medical expenses, those numbers go “on the board” before the jury and the argument on summation will be that the jury should start their damages calculations at $1.7 million. Lawyers are not permitted to ask for a specific dollar value when it comes to damages for pain, suffering and loss of enjoyment of life. Jurors are simply instructed to use their everyday experience and judgment when coming to a sum to compensate a plaintiff for non-economic losses. This is an odd anomaly in the law because the fact of the matter is that most people have absolutely no experience valuing the impact of injury and disability.

Economic loss

Lost Wages.

If a jury concludes that a care provider’s negligence caused a patient to become disabled, the patient may recover for past and future lost wages. In a simple case, expert economic testimony may not be required, although expert medical testimony must always establish that a plaintiff is physically disabled. If an economist is not hired, evidence of a plaintiff’s past earnings will be placed before the jury (usually in the form of W-2 forms etc.), and the jury will be asked to project the loss of earnings that a plaintiff will suffer due to disability until his work-life expectancy is reached. Sometimes malpractice does not render a patient completely disabled, but injuries cause limitations that result in decreased income. In those circumstances, the measure of lost wages is the difference in earning capacity before and after the injury.

In many medical malpractice cases, an economist will be hired when there is a future lost wage claim. There are many reasons for this, including the fact that people usually receive benefits above and beyond wages when they are employed, including medical insurance coverage and pension benefits. These kinds of damages are not usually capable of simple proofs, and hiring an economist to evaluate the nuances of these losses is often well worth the cost involved. Additionally, under the law in New Jersey, the dependents of an individual injured by malpractice have a right to recover for the lost value of services previously provided by a malpractice victim (counsel and guidance, household chores etc.) which can no longer be performed as a result of disability. Hiring an economist makes it possible to quantify the value of such services so that they can be placed before the jury as a dollar value. Another benefit to hiring an economist is that they can explain and distill complex concepts like “present day value” and provide net numbers after taxes so that jurors are relieved of some of the burden of conducting these kinds of calculations on their own.

Future lost wage claims are always contested because they can wind up being a substantial sum in any jury award. Defendants will argue that (a) a plaintiff’s injuries were not significant enough to result in any disability, or (b) that a plaintiff who is disabled is capable of some other form of employment that would lessen or mitigate the consequences of his lost wages. Defendants will offer medical expert testimony about the nature and extent of a plaintiff’s disability. Frequently defendants hire employability and vocational experts who offer opinions about the kind of work a plaintiff is still qualified to perform and the kinds of opportunities that are available in the workforce. Click here to review Model Jury Charge 8.11(c) Loss of Earnings. The Model Jury Charges are the actual instructions given by judges in civil jury trials in New Jersey. These instructions explain the law that is to be applied to the facts by juries, and jurors are told to follow these instructions when deciding cases.

Medical Expenses

A plaintiff may recover payment for medical expenses which were reasonably required for the examination, treatment and care of injuries proximately caused by a defendant physician’s negligence. Claims for medical expenses must be supported by expert testimony that establishes that (a) the care was medically necessary, and (b) the charges were reasonable. If expert testimony establishes that the plaintiff will incur future medical expenses, a claim for those expenses can be made as well.

The collateral source rule prevents plaintiffs from recovering medical expenses that were already paid by insurance coverage. Nevertheless, most health insurance policies grant an insurance company subrogation rights to seek reimbursement for medical expenses paid for injuries caused by someone else’s negligence. The law allows for similar subrogation rights relative Worker’s Compensation payments, Medicare and Medicaid. As a result, in most cases all of these bills will go before the jury, but the judge will either mold the verdict after it is returned if the third-party payor does not have a right to reimbursement or the verdict will stand and the money will be forwarded to the insurance carrier or government agency if a subrogation right exists. Click here for Model Jury Charge 8.11(a) Medical Expenses.

Other economic losses related to mitigating the impact of an injury due to medical negligence.

Families may suffer other kinds of economic loss as a result of a physician’s negligence. Patients who suffer catastrophic injuries frequently need to have modifications made on their homes or automobiles to continue functioning. Also, services can sometimes be provided to allow a patient to maintain some level of independence he would otherwise forfeit if he had to go to a long term care facility. In cases like this, lawyers will often hire a life care planner. Life care planners are experts (frequently nurses) who evaluate a patient’s disabilities and provide testimony about the kinds of equipment and services that can help patients cope with their disabilities and the costs of such services.

In cases involving patients who suffer less serious injuries, proofs about ancillary services necessitated by injuries can often be something as simple as a receipt. For example, if a patient normally painted his own home prior to being injured by malpractice, but since has had to hire someone to perform this chore, the costs of the service could be placed before the jury with a receipt, cancelled check or simple testimony.

Noneconomic loss

Noneconomic loss consists of damages awarded for disability, impairment, pain and suffering and loss of enjoyment of life. Again, in New Jersey, plaintiffs may not ask for a specific monetary amount for noneconomic loss damages, and the jury is asked to use its common sense and everyday experience when coming to calculations about these damages. Click here for Model Jury Charge 8.11(e), which thoroughly explains the nuances of these kinds of damages.

Although attorneys may not specify a sum to the jury for damages related to disability, impairment, pain and suffering and loss of enjoyment of life, they are permitted to use a time unit argument in summation to help a jury come to a reasoned conclusion about how to compensate a plaintiff in a medical malpractice case. A lawyer will pick a unit if time, for example — a single day, and ask a jury to calculate damages for a patient based on what reasonable compensation would be for one day of pain disability and loss of enjoyment experienced by a plaintiff on a given day. The jury is then provided with the amount of days left in a plaintiff’s life (through life expectancy tables or expert testimony) and they are asked to multiply a day’s compensation by that number. The utility of this process is that it allows a jury a framework for coming to a decision about a subject that is otherwise very abstract and hard to contend with.

In addition to the damages sustained by a patient, if the patient is married his/her spouse will have a claim for damages related to a per quod claim. The spouse of an individual is entitled to the services of his/her spouse in attending to things like household maintenance, and to companionship and comfort. To the extent medical malpractice interferes with these things, the spouse of a malpractice victim has a claim for damages. Although this claim is a derivative one, when medical malpractice results in a substantial injury, per quod claims can be a substantial part of the case. Click here for Model Jury Charge 8.30(b) Loss of Spouse’s Services, Society and Consortium.

Defenses to Damages

Every case has a liability defense and if a patient/plaintiff does not meet his burden of proof and convince a jury that a doctor was negligent then they will recover nothing. Click here for Model Charge 5.50(a) Duty and Negligence, which sets forth a patient’s burden of proof on the issue of negligence in a medical malpractice case.

Similarly, in every case a plaintiff must prove that a defendant physician’s negligence proximately caused his injuries. This is a very esoteric subject in medical malpractice cases that involves different nuances depending on the facts involved in the particular case. The subject is beyond the scope of this article, but the essence of the issue is that to prove proximate cause a patient must demonstrate that the mistake made by the medical provider was sufficiently connected to the injury claimed. Click here for Model Charge 6.10 Proximate Cause – General Charge to be Given in all Cases for an introduction to the concept.

Sometimes medical malpractice cases involve an allegation on the part of a medical provider that a patient failed to follow instructions, and this is what actually caused the injuries and damages involved in the case. When this occurs, the defense being raised is comparative negligence. If a jury determines that a plaintiff is partially responsible for the damages he suffered as a result of failing to follow instructions, they are instructed to reduce the damages that are awarded by the percentage they believe the plaintiff is responsible for the outcome. If the jury concludes that the plaintiff is more than 50% responsible for the damages, the plaintiff patient is awarded nothing. Click here for Model Jury Charge 7.31 Comparative Negligence: Ultimate Outcome which explains how a defense of comparative negligence can reduce a jury award.

How I Approach the Subject of Case Value with Clients

Usually after all expert reports are served and discovery is complete we begin to address the potential value of a given medical malpractice case with a client. We start be calculating the amount of economic loss a plaintiff has and will sustain, and we then attempt to determine the range of damages that can be expected for noneconomic loss. Typically, I will do a verdict/settlement search in cases involving similar malpractice damages to get an overview of the recoveries that have occurred in various jurisdictions in similar claims. I then provide the client with this data and an analysis of where I think their case falls in the spectrum of claims. We then discuss negotiating strategies and get a clear definition of what a client’s “bottom line” is.

While I provide clients with data and my analysis, the decision about whether to settle a case is always the client’s. Attorneys have an ethical obligation under RPC 1.4 to advise their client of any settlement offer that has been made by the defense.

I have yet to disagree with a client about the value of a case. I believe this is because I work on medical malpractice cases on a contingency basis and so I have a common interest with each client to maximize the potential recovery in any given matter. Also, because we educate our clients about the valuation process and provide them with the data that we use to come to conclusions about these subjects, it is easy to stay on the same page at the end of a litigation.

What clients are charged when pursuing a medical malpractice case.

There are two categories of charges when a client hires an attorney to pursue a medical malpractice case: (a) an attorney’s fees and (b) costs.

An attorney’s fee in a malpractice case is almost always a contingent fee, which means that they are only payable if a patient/plaintiff recovers. The contingent fee a lawyer is permitted to charge is usually regulated by the state. In New Jersey, after subtracting any unpaid costs, lawyers in medical malpractice cases charge a client approximately 33 ⅓ of the remaining amount recovered. The amount is decreased incrementally for each $750,000 recovered. Additionally, if a client is mentally incapacitated or a child, attorneys may only charge a contingent fee of 25% if the case is resolved without a trial.

Costs in a medical malpractice litigation can be substantial. The biggest cost associated with these files are fees charged by expert witnesses. Additional costs include (but are not limited to) filing fees, court reporting fees, mail and courier charges and costs associated securing medical records. Even simple malpractice cases can involve costs in the neighborhood of $30,000 if a case is litigated through trial. A complex malpractice case involving multiple defendants in different medical specialties can easily exceed $100,000 in costs.

Malpractice lawyers deal with litigation costs in different ways. Some lawyers require an initial retainer fee and then ask clients to forward additional money as costs are paid to keep the account current. Other lawyers require only a single retainer fee at the outset of a case with the understanding that the firm will advance additional costs, to be paid by the client at the end of the litigation out of the proceeds of the lawsuit.

At my firm, we do not require an initial retainer from clients at the outset of a case. Rather, we typically ask clients to cover the costs related to securing the pertinent medical records for our initial review. The cost related to medical records is usually a few hundred dollars. After we review the pertinent records, if we determine a case should be submitted to an expert so that it can go into litigation, we advance all remaining costs, with the understanding that clients will reimburse us for the expenses related to the litigation out of the money we recover in the lawsuit.

We carbon copy our clients on all correspondence, so clients are contemporaneously aware when we are paying costs related to their litigation. Furthermore, at the end of each case we provide clients with a Closing Statement which details attorney’s fees and all costs incurred during the litigation. Finally, all of this is incorporated into our retainer agreement, which we discuss and explain during our initial meeting with our clients.

Three Questions I Ask When Deciding Whether to Investigate a Potential Medical Malpractice Case

(1) Did the client experience an unexpected medical outcome?

Approximately 90% of the time, after I review a client’s medical records and the pertinent medical literature, I can tell a client whether a health care professional provided a patient with negligent medical treatment. About 10% of the time, I need to consult an expert before reaching this conclusion, because the key issue in the case requires the examination of physical evidence and a specialist’s exercise of judgment (for example, case involving the interpretation of an x-ray).

When a client initially contacts me, the analysis is simpler: Has the client experienced an unexpected medical outcome? Not every unexpected medical outcome occurs because of a medical mistake, but almost every medical mistake results in an outcome that a patient did not expect. Some medical procedures carry risks that occur and are unavoidable. These kinds of risks, however, are supposed to be explained to patients before procedures pursuant to a doctor’s duty of informed consent, and therefore would not be unexpected.

(2) Did the unexpected outcome likely result in a significant permanent injury.

Medical malpractice cases are very expensive to prosecute. First, although I work on a contingency fee basis (I only get paid my fee if a client recovers), like all lawyers I keep track of the time that I have to dedicate to each case I prosecute. Relative to other kinds of litigation, medical malpractice cases are very time consuming. They involve complex issues of medicine and law and attorneys must put in allot of time preparing for every step of the litigation process. Additionally, because these cases usually involve high stakes and significant injuries, doctors and insurance carriers on the other side will only offer to resolve a litigation when they are convinced that if a case goes to trial, there is a substantial chance that they will lose. Therefore, most of the time, these cases have to at least get through the late stages of a litigation so that the defense can size up your case.

A simple medical malpractice case will often require my office to advance more than $30,000 in actual expenses. More importantly, these cases usually require a commitment of at least $200,000 in attorney time (even though it is not billed). As a result, medical malpractice cases have to have a potential financial upside of several hundred thousand dollars to be economically viable.

For a client’s malpractice case to be worth several hundred thousand dollars, it usually must involve an injury that will cause permanent problems and restrictions. Furthermore, this injury must be one that cannot be repaired with additional medical care.

Sometimes a client will telephone me about a potential medical malpractice case and they do not know the extent of their injury because they are still undergoing medical care in an effort to mitigate the outcome of a mistake. If it appears at face value that additional care will help, I suggest a client focus on trying to get better, and call me in a few months to discuss the case further if they do not. In New Jersey (where I practice) most of the time a plaintiff has two years from the date malpractice occurred to file a lawsuit. Therefore, there is usually time for a client to seek medical care and get a better understanding of the consequences of a medical mistake.

(3) Will the injury have a significant impact on the client’s life?

At the end of a trial, a jury is asked to compensate a medical malpractice victim for the pain, suffering and loss of enjoyment of life caused by an injury resulting from medical malpractice. The jury also awards damages for all economic loss suffered as a result of an injury, which can include (a) medical costs incurred because of an injury, and (b) loss of wages. The more significantly an injury impacts a client’s life, the more likely it is that a jury will render a substantial verdict.

The Role of Informed Consent In Defensive Medicine

Those who advocate tort reform often point to the problem of defensive medicine as a justification to limit the right of redress of victims of medical malpractice. The argument is that the “pervasiveness of malpractice litigation” causes health care providers to “order tests or procedures in excess of their actual need to protect themselves from the risk of lawsuits.” Tara F. Bishop, MD, Alex D. Federman, MD, MPH & Salomeh Keyhani, MD, MPH, Physicians’ Views on Defensive Medicine: A National Survey, 170 Arch Intern. Med. 1081 (2010). Accordingly, malpractice litigation is seen as creating a problem of over-deterrence, with lawsuits causing doctors to take more precautions than they otherwise should when they treat their patients.

PHYSICIAN PERCEPTIONS VS. REALITY

When attempting to determine why diagnostic tests and procedures are being over-ordered, it is difficult to distinguish a doctor’s attempt to stave off liability from other motivations, and relying on doctors to self-report their motivation can be problematic.

Doctors certainly think the threat of malpractice causes them to be excessively cautious. Studies surveying doctors for the last 30 years reveal that anywhere between 21% to 98% admit engaging in defensive medicine. J. William Thomas et al., Low Costs of Defensive Medicine, Small Savings from Tort Reform, 29 Health Affairs 1578-1584 (2010). Nevertheless, it is hard to reconcile physicians’ perceptions that they are acting in an overly cautious manner with reality. Ten years ago, the Institute of Medicine concluded that the amount of medical errors in the United States was at epidemic proportions. Robert M. Wachter, M.D., The End of the Beginning: Patient Safety Five Years After ‘To Err Is Human’, W4 Health Affairs, Web Exclusive, 534-545 (2004). Similarly, although the last few years have seen an escalation in the discussion about the costs of defensive medicine, over-cautious behavior is not evident in outcomes because medical error rates have held steady. Christopher P. Landrigan, M.D. et aI., Temporal Trends in Rates of Patient Harm Resulting from Medical Care, 363 New Eng. J. Med. 2124 (2010).

BIAS

Bias may be one culprit here, as some commentators have pointed out. “Because many physicians are attuned to defensive medicine as a problem, and their professional organizations agitate prominently against it,” studies that attempt to quantify the scope of the problem of defensive medicine by surveying physicians are prone to a “socially-desirable response bias.” David M. Studdert, LLB, SeD, MPH, et al., Defensive Medicine and Tort Reform: A Wide View, 25 J. Gen. Intern. Med. 380 (2010).

INHERENT DEFECTS

In addition to the problem of bias, surveying doctors to attempt to determine whether the threat of a medical malpractice lawsuit causes over-utilization has other inherent defects. First, there are many other causes for profligate testing in medicine, including: 1) the public culture of entitlement; 2) the expectation of immediate and perfect results; 3) the extraordinary increase in diagnostic and treatment options today; and 4) growing specialization and fragmentation of care. Marcel Frenkel, M.D., M.B.A., Consensual Medicine and the Therapeutic Partnership: Reducing the Costs of Defensive Medicine and Litigation, 25 J. Med. Prac. Mgmt. 78 (2009). Additionally, managed care contributes to over-ordering because it requires faster analysis and decisive conclusions. Id.

DOES REFORM BRING RESULTS?

Studies that have attempted to quantify the costs of defensive medicine by looking at the impact that tort reform has had on health care savings have obtained inconsistent results. For example, while some studies have found lower health care costs in states with tort reform, others noted a weak relationship between tort reform and health care savings. Still other studies found no relationship at all. J. William Thomas et al., Low Costs of Defensive Medicine, Small Savings from Tort Reform, 29 Health Affairs 1578, 1579 (2010). These varied results have been attributed to the fact that researchers invariably focus on limited sets of clinical conditions or specialties. Id. at 579.

In 2009, a broader and more comprehensive study was undertaken to ascertain the impact of tort reform measures on health care costs by examining Medicare spending in states that adopted tort reform. Frank A. Sloan & John H. Shadle, Is There Empirical Evidence for ‘Defensive Medicine’? A Reassessment. 28 J. Health. Econ. 481 (2009). The study concluded that its analysis, and those of previous studies, suggested that contrary to statements in the media, caps on damages and the abolition of punitive damages did not have a significant impact on the reduction of payments for the studied Medicare services. The researchers’ overall conclusion was that “tort reforms do not significantly affect medical decisions, nor do they have a systematic effect on patient outcomes.” Notably, these results meshed with the Congressional Budget Office’s estimate that if tort reform were enacted in the form of a $250,000 cap on non-economic damages, a $500,000 cap on punitive damages and a decrease in statute of limitations, the savings from a combination of: 1) decreased use of services from less defensive medicine; and 2) lower malpractice insurance premiums would be merely .5% of the annual national expenditure of health care. Cong. Budget Office, Letter to Honorable Orrin G. Hatch, U.S. Senate, Oct. 9, 2009, available at www.cbo.gov/ftpdocs/106xx/doc10641/10-09-Tort_Reform.pdf.

DEFENSIVE MEDICINE AND INFORMED CONSENT

There is another reason to question whether defensive medicine causes doctors to over-order tests. At face value, the defensive medicine argument is premised on an outdated and paternalistic view of the physician/patient relationship that is contrary to law. In most circumstances, the law compels physicians to empower their patients to make consequential medical decisions. Thus, it is a mistake to assume that reduced exposure to liability will allow doctors to be less cautious.

The doctrine of informed consent has been in existence since the early 20th Century. In Schloendorff v. Soc’y of the N.Y. Hosp., 211 N.Y. 125 (1914), Justice Benjamin Cardozo concluded that “every human being of adult years and sound mind has a right to determine what shall be done with his own body; and a surgeon who performs an operation without his patient’s consent commits an assault, for which is he liable in damages.”

It is settled in New Jersey that a physician has a legal duty to disclose to the patient all medical information that a reasonably prudent patient would find “material” before deciding whether to undergo a medical procedure. Largey v. Rothman, 110 N.J. 204 (1988). The test of materiality is simply whether a reasonably prudent patient, “in what the physician knows or should know to be the patient’s position, would be likely to attach significance to the risk or cluster of risks in deciding whether to forgo the proposed therapy or to submit to it.” Caputa v. Antiles, 296 N.J. Super. 123 (App. Div. 1996) (citing to Largey, supra, 110 N.J. at 211-212 (quoting Canterbury v. Spence, 464 F.2d. 772, 787 (D.C. Cir.), cert. den., 409 U.S. 1064 (1972)). “A physician who fails to disclose alternative treatments that a reasonably prudent patient, in what the physician knows or should know to be the patient’s position, would consider significant in making one’s own treatment decision, violates the standard for disclosure.” Caputa, supra, 296 N.J. Super. at 134.

The standard governing the disclosure focuses on what a reasonable patient needs to know – that is what a reasonable patient would likely find significant given the risks – to make an informed decision in foregoing or consenting to a medical procedure. Howard v. Univ. of Med & Dentistry of N.J., 172 N.J. 537, 547 (2002). Notably, the foundation for this duty to disclose is found in the idea that “it is the prerogative of the patient, not the physician, to determine for herself the direction in which her interest seems to lie.” Largey, supra, 110 N.J. at 214 (citing Canterbury, supra, 464 F.2d at 781). It is an objective standard; “it relates to the patient’s needs, not the physician’s judgment.” Blazoski v. Cook, 346 N.J. Super. 256, 267-268 (App. Div. 2002).

While informed consent does not require doctors to “recite all the risks and benefits of each potential appropriate antibiotic,” for example, when they write a prescription for treatment of an upper respiratory infection, doctors do have an obligation to “disclose all courses of treatment that are medically reasonable under the circumstances.” Matthies v. Mastromonoaco, 160 N.J. 26, 36 (1999). Doctors can and are expected to make recommendations about care, but “the ultimate decision is for the patient.” Id. at 34.

CONCLUSION

There are many reasons to question the scope of the problem of defensive medicine. First, initial steps to quantify it were based solely on surveys of physicians. An examination of the health care landscape revealed that there were many forces that would motivate doctors to over-order diagnostic tests and procedures. Second, although some states have now enacted tort reform, data from studies suggest that limiting a medical malpractice victim’s right of redress does not significantly impact physician behavior. This is not very surprising given the absence of progress in the patient safety movement. Moreover, since tort reform does not impact physician behavior, it is not surprising that government projections conclude that drastic steps to limit a medical malpractice victim’s right of redress will result in negligible health care savings.

It is a mistake to think that granting doctors immunity for consequential decisions will result in less diagnostic tests and procedures because most consequential medical decisions are being made by doctors and patients. It may very well be that bringing patients into the process has resulted in more decisions that err on the side of caution. Courts decided long ago that patients had this prerogative. It does not seem fair to shift the burden of the costs of informed consent to a smaller group of people simply because they have been harmed by medical malpractice. Fairness aside, enacting tort reform to combat defensive medicine is a public policy decision based on a loosely defined and overstated problem and studies already show that it will not impact physician behavior. Of course, it will not impact the medical decisions of patients either.

Medical Malpractice: Making the Most of Pretrial Discovery

To obtain a comprehensive understanding of your client’s medical case, it is essential that you create a narrative time line of your client’s treatment records. By organizing relevant physician notes, orders, consults, nurses findings, and the results of diagnostic and laboratory tests in chronological order before filing the suit, you will get a far better understanding of your client’s course of treatment than by simply reviewing a hospital or other medical record, in the fortuitous manner it is presented.

Attorneys must insist on timely service of defendant’s interrogatory answers. It is common practice to receive incomplete answers from the defendant to uniform interrogatories mandated by the court rules. A demand for more specific answers to interrogatories will invariably be required, followed by a formal motion addressed to the court. Even the most diligent attorney will find it takes a minimum of four to six months before responsive answers are provided.

It is common for defense counsel to interpose objections to uniform interrogatory questions required by the court rules, to assert objections such as the need for clarification of the interrogatory, an assertion that the interrogatory calls for a legal conclusion, or a claim that the interrogatory is unduly broad and overly burdensome. None of these objections have any merit in view of the fact that R. 4:17-1(b)4 requires that “every question propounded by a uniform interrogatory must be answered unless the court has otherwise ordered.”

Uniform Interrogatory Form C(3), question 1, seeks the identity of every person in the vicinity of the alleged occurrence. Defense counsel routinely attempts to avoid giving an answer to this question by taking the position that it is unclear what the “alleged occurrence” is. While such an answer is improper under any circumstances, it can be even further avoided by plaintiff’s counsel providing detailed allegations in response to uniform interrogatory form A(l), question number 7, which seeks plaintiff’s contentions as to the negligence of the defendants.

Uniform Interrogatory Form C(3), questions 2 and 3, seek detailed narratives from the defendant physician regarding the care provided to the plaintiff. Interrogatory 9 seeks a description of defendant’s informed consent interview, and interrogatory 15 requires an explanation from the physician defendant as to why consultations were ordered and requests the reports received by the defendant from such consults. Since it is common for physicians to recall details about the care provided to a plaintiff that goes well beyond what has been written in the defendant’s medical chart, or to claim that what has been written in the medical chart is merely a summary, plaintiff’s counsel must reject a defense response which generically references the medical records. R. 4:17-4(a) requires interrogatory answers to be furnished “separately, fully and responsively.” Id. It is the defendant’s obligation to collect information and supply it in the form required by the rule, and defense counsel should not be permitted to allow their clients to cleverly avoid the rule. Seiden v. Allen, 135 N.J. Super. 253, 256 (Ch. Div. 1975).

Uniform Interrogatory Form C(3), question 4 requires the defendant to attach a complete curriculum vitae. In the first instance, having this information will avoid wasting valuable deposition time and costs to learn the details of a defendant’s professional background and education. Moreover, and more importantly, the professional boards and societies to which a defendant belongs often publish standards and practice publications that will serve to corroborate your expert’s opinions about such standards and eliminate much of the debate on these issues at trial.

Uniform Interrogatory number 6 seeks complete information about past malpractice suits. Since R. 4:17-4 requires that responses be furnished by supplying all information available to the party, the party’s agents, employees and attorneys, a defendant may not simply avoid providing a responsive answer by claiming a failure to have such details committed to memory. This information is clearly available to the doctor and his counsel. Uniform Interrogatory number 11 seeks information about peer review materials. The ancillary information concerning peer review meetings mandated by this interrogatory is not subject to a claim of privilege. Whether a particular document resulting from a peer review investigation is privileged depends on its substance and the availability of the information contained in the document from other sources. See Christy v. Salem, 366 N.J. Super. 535 (App. Div. 2004). Defendants should not be permitted to block all inquiry into this area of evidence by asserting a blanket objection to a question which has been mandated by the court rules.

Demands for documents pursuant to R. 4:18-1 serve as an excellent tool to buttress your expert’s position regarding the standard of care from which the defendant deviated. If a defendant physician is employed by a group or organization, employment contracts or shareholder agreements executed by members of such organizations often require the physician to practice medicine in accordance with the standards of a particular professional society. Such contracts and agreements may also delineate the defendant’s responsibilities with respect to rounding, being on call, supervising physician assistants and residents, and interacting with other members of the group. While some of this information may be confidential in nature, case law clearly establishes that the information must be disclosed if relevant. Lakewood Trust Co. of Lakewood v. Fidelity & Deposit Co. of Maryland, 81 N.J. Super. 529 (Law Div. 1963); Gureghian v. Hackensack Hospital, 109 N.J. Super. 143, 148 (Law Div. 1970).

It is also not uncommon for physician groups to generate triage protocols regarding communications between patients and the office relevant to potential emergencies by telephone or otherwise. If a hospital is a defendant in a case, resident codes of conduct, resident/hospital employment contracts, medical staff bylaws, medical staff rules and regulations, coding booklets and hospital protocols, are all extremely useful in supporting plaintiff’s expert testimony on applicable standards. These materials become extremely useful where there are multiple defendants in the case, all of whom are disclaiming responsibility for patient monitoring, yet, nevertheless, fail to implicate one another.

6 tips to avoid expensive legal advice

If you need legal advice for your business or personal matters, hiring quality and professional lawyers may cost you lot of money. But, it is always advisable to opt for quality legal services. here are some tips that will help you to avoid high cost of legal advice. If you belong to the low-income group, you can make use of large network of legal aid programs that operates on federal agents. You can use these programs and get free legal advice for your problem.

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Every attorney should give free consultation

While you cannot stop crime from happening, you can help others as your lawsuits against the responsible perpetrator will help them to improve their security and ensure that such crimes do not happen in the future. We can also help you with lawsuits against negligent parties for different issues such as inadequate security, wrong hiring practices and also lawsuits against schools.

Continue reading “Every attorney should give free consultation”