Litigating Healthcare Malpractice Cases: Challenges for Plaintiff’s and Defense Counsel

Mon, Sep 9th, 2024 | by Miles Mediation and Arbitration | Article | Social Share

Even if they involve similar facts or injuries, no two medical malpractice cases are alike. Juries are laypeople who must consider testimony from medical experts and other witnesses and determine credibility and competence. The heightened emotions involved and the complicated issues often make these cases well-suited for mediation. Here’s a closer look at some of the issues typically involved in these healthcare malpractice cases and how I approach them as a medical malpractice mediator.

Challenges for Plaintiff’s Counsel

A typical medical malpractice case may involve issues such as misdiagnosis, delayed diagnosis, unsuccessful treatment, and many others. However, I believe a significant percentage arise from differences in clinical opinion. Medicine is an inexact science, which fosters varying opinions and actions. Plaintiff’s counsel must be aware of this and must secure expert opinions that are based not on personal preference but on a deviation from the standard of care.

Chosen experts must be able to support their opinions based on reliable principles and methods. This will allow them to pass Daubert challenges and carry the burden of proving the plaintiff’s case. Obviously, this entails considerable time and money. They must also be able to communicate to the jurors in understandable layman’s terms the issue with the negligence and the deviation from the accepted standard of care. Additionally, plaintiff’s attorneys may have a difficult time satisfying their clients because they may have unrealistic valuations of their case.

Challenges for Defense Counsel

On the defense side, counsel must have their own experts who can convince the jury that the doctor’s (or other healthcare provider’s) decisions and actions (or inaction) were within the “standard of care.” In the past, healthcare providers’ actions were generally not questioned.

However, with the advent of managed healthcare and the pressure to treat more patients, people often feel that doctors don’t take the time to listen to them. There is less tolerance for doctors’ mistakes, whether that’s a misdiagnosis or delayed diagnosis, unsuccessful treatment, or another medical malady. Medicine has become more institutionalized, and many patients don’t feel that they receive “personalized care.” This attitude encourages more lawsuits and can lead to larger verdicts.

Defense attorneys must also contend with the fact that physicians worry a judgment could affect their insurance coverage and be reported to state licensing boards (such as Georgia’s Composite Medical Board) and the National Practitioner Data Base. They may also fear that a judgment could affect their professional reputations and practices.

The Challenges of Litigation

With societal changes post-COVID-19, the concerns are greater on both the plaintiff’s and defense sides. While the odds are still against plaintiffs, juries are handing down large verdicts in some cases.

As I mentioned, medicine is an inexact science; it’s not like running a stop sign where liability is clear. You’ll have varying expert opinions—one expert may say it’s a deviation from the standard of care, and another expert will say it is not. Typically, you have great experts on both sides, and they’re going to cancel each other out. Jurors are only laymen, and the jury may decide the case based on how they perceive the plaintiff and defendant. The jury will listen to the doctor and try to determine how compassionate and considerate he or she is, but they will also listen to the plaintiff. If she said that she trusted Dr. Smith and kept telling him that her left side hurts and it’s not getting better, they may side with her.

Preparing for Mediation

As a mediator of medical malpractice cases, I like to prepare for the mediation ahead of time. Plaintiff’s and defense counsel usually provide me with mediation statements, and I speak with counsel for all the parties to get their perspective on the case. This allows me to ascertain the facts and circumstances and nail down the issues and the respective parties’ positions, such as what the claimed deviation from the standard of care is. For example, let’s say a patient had complications after a colonoscopy and experienced post-operative bleeding. What was the cause of the bleeding? Was it a perforated colon? Was this an accepted risk of the procedure? Or was it due to a deviation from the standard of care?

Every case is case-specific, so you must know what the issues are. You must consider the defense’s standpoint. Was it an anatomical anomaly? Were there other factors that couldn’t be foreseen? Is it an accepted complication? Sometimes something goes wrong during a procedure, and it isn’t bad medicine; it’s a complication that can be expected.

The Mediation Itself

Finally, it’s important to develop rapport on both sides at the mediation itself. On the plaintiff’s side, you must show concern and empathy to the plaintiff or the plaintiff’s family in a death case. Even if you think the case doesn’t involve a deviation from the standard of care, medicine is an inexact science. I might say something like, “I am sorry that we have to be here today, and that you suffered such a loss.” I want to develop that connection with the plaintiff at the outset.

I take a similar approach with the defendant, showing empathy to the doctor or healthcare provider. This doctor may not have ever had a malpractice claim before and likely doesn’t believe that he or she did anything wrong. I let the physician know how stressful the experience is for them, but this is the only way to adjudicate and resolve these issues.

Preparing for the mediation ahead of time and creating rapport with both parties helps ensure a successful mediation. Even if the case doesn’t settle at the mediation itself, these actions make it more likely to settle before trial, which benefits both parties.

*originally published in the Daily Report and republished with permission

About Jack Slover

Jack Slover has been practicing law since 1975. After completing his active duty service in the Army, he joined the firm of Twitty and Twitty in Camilla, Georgia. He became a partner in 1980 and the firm became Twitty and Slover. While in Camilla, Jack practiced in all areas of litigation including domestic, probate, worker’s compensation, civil and criminal.