Medical-malpractice: The effective arbitration brief

A look at “neutral” arbitrators and the arbitration brief that enables the neutral to do the right thing

2015 November

Here’s my view, after a quarter of a century of dealing with judges, juries and arbitrators: everything you say or do before a finder of fact is closing argument. Nowhere is this understanding more important than in an arbitration brief, because the relative looseness of the rules of evidence and of procedure in arbitration give you complete freedom to state and support your case as you choose, with fact, inferential evidence or argument, all at the very start, well in advance of the formal presentation of evidence; and the virtually universal languor of the defense in preparation of arbitration briefs gives you the gift of primacy.

At the end of the arbitration, you want the arbitrator to say “the plaintiff’s lawyer showed me the case clearly and persuasively at the start, in the brief, then proved exactly what the brief asserted, leaving me little rational choice but to go for the plaintiff.” You want to define the battlefield by setting out which issues you assert are dispositive. Along the way, you want to give the arbitrator the tools – case-specific facts, common-sense reasoning and educational materials – that permit him to justify a plaintiff’s award to the defense insurance industry.

First off, you have to know your audience.

What are the characteristics and natural habitat of the “neutral” arbitrator?

The “audience” for arbitration briefs is the “neutral” arbitrator.

What are the characteristics of this particular subspecies?

For starters: they are not neutral.

No one is. But it is even harder for arbitrators to act impartially neutral than it is for jurors, because jurors normally lack the intense economic interest in the outcome that defines the arbitrator’s financial situation. There are two major sources of bias: personal and industry-structural.

Personal leanings in arbitrators may have their genesis in their opinions of the presenting lawyers or the party arbitrators, in their own past experiences with plaintiffs or defendants in prior careers as litigators or judges, or in their personal experience with the facts of the specific case. Schadenfreude is also alive and well in the arbitration world. If an arbitrator has spent his professional life helping injured patients and dealing with the magnificent sophistry routinely broadcast by defense lawyers, he will find it difficult to make close calls in favor of the defense. If his pre-arbitrator years were filled with defending unwarranted lawsuits and exaggerating plaintiffs, he will intuitively lean in favor of the defense.

Prior backgrounds, of course, are not necessarily dispositive. In influencing outcome, they are small potatoes compared to the profound effect of the “frequent user” problem.

However much denial floats in the air, arbitrators are in the potentially incendiary position of being “deciders of fact” where the outcome has a clear, palpable effect on their own ability to earn a living. Some arbitrators command more than $1,000 per hour; most command between $500 and $1,000 per hour. Arbitration is a high-stakes game, not only for the litigants, but for arbitrators who are swimming in an increasingly overstocked, money-saturated pond. Former judges and even former name partners can earn far more doing arbitration and mediation than they earned in their earlier work life, with a small fraction of the personal pressure and risk.

In California medical malpractice, with few exceptions, there are only two recurrent hirers of arbitrators on the defense side: CAP/MPT (Cooperative of American Physicians (CAP) developed Mutual Protection Trust (MPT)) and Kaiser Permanente. Since mutual consent is required to retain a neutral, if a neutral arbitrator falls afoul of CAP/MPT or Kaiser, he is likely to lose a major part of his future income. By contrast, alienating a plaintiff’s lawyer, who may have one or two arbitrations a year, carries little or no economic consequence. And the paucity of grounds for vacating arbitration awards creates virtual immunity for the neutral from such reversal.

We plaintiffs have our list serve, and the conduct of the worst offenders is sometimes brought to light. However, list serve’s ability to level the playing field, where there is no imposed unity of action and contradictory postings reflect the stubborn independence of the members of a perpetually fragmented plaintiff’s bar, pales in comparison to the precise performance records kept by the two central defense insurers and their effective immediate application of discipline to the wayward neutral.

In one case, after two large plaintiff’s awards in a row, a former defense lawyer was told by CAP/MPT that it was not going to use him for the rest of his life. Other ‘neutral’ arbitrators have told me of conversations between arbitrators beginning with, “I’ve heard from our lord and master today,” referring to Kaiser. Another neutral, in awarding a near-7- figure amount, commented that “I know that I’m going to be doing a lot of fishing for the next year or two.” One ‘neutral’ arbitrator told my party arbitrator, during deliberations in a bad-baby case, “Look, either this child gets $6 million over the next ten years, or I’m going to be able to earn that much as an arbitrator. Both can’t happen. Verdict for Kaiser.” Several neutral arbitrators have disappeared from practice for a year or two after a large plaintiff’s award.

Others simply give in: in one arbitration, where a Kaiser physician admitted writing orders he knew would bring about the death of a non-terminal patient, the ‘neutral,’ faced with no written or oral consent from any empowered family member, simply “inferred consent” to the fatal treatment rather than venture into the minefield of intentional tort.

Revealingly, in one case where there was a plaintiff’s award, the neutral told the defense lawyer, in my hearing, “I’m sorry, but I just couldn’t live with myself if I went for the defense.” In the end, given the way in which a plaintiff’s award, particularly a large one, may adversely affect the future income of the decider of fact, plaintiffs may be faced not with a “preponderance of the evidence” burden of proof, but with a “the arbitrator couldn’t live with himself if he went for the defense” standard.

These are facts of arbitration life. We depend on the better angels of the nature of neutral arbitrators, upon whom is imposed a structural economic interest in going defense or, if he goes plaintiff, in minimizing the award. In some neutrals, these better angels can be summoned; in others, you could probably chop them into small slices and find very little. But the consequences of the system are this: behind every neutral arbitrator during litigation there lurk two shadows . . . the shadow of the uber-claims adjusters for the two major defense insurers, who keep track of which arbitrators have been overly generous to the plaintiff, and the shadow of potential loss of a lucrative income base.

In this setting, there is a particular urgency to giving the neutral all the tools he needs to bring himself to go plaintiff; to make it clear to the claims adjusters to whom he will eventually be accountable that he had no plausible choice; and to do it at the very outset, preferably before the presentation of evidence starts, so that the evidence coming in later is viewed through the lens of the plaintiff’s theories. The vehicle is the arbitration brief.

The first two pages of the arbitration brief should say it all

In 25 years of practice, I have yet to read a defense arbitration brief that goes materially beyond the formulaic. The facts are set out selectively, omitting those which help the plaintiff. They state that the defendant did nothing wrong, but if he did, he caused no harm; that there was no harm, but if there was harm, it was the plaintiff’s fault or was a known risk of the defendant’s non-negligent conduct; and that any harm caused will be short-lived, if only the plaintiff would properly mitigate damages or have coverage by government or private insurance.

Yawn. And opportunity: the bland predictability of the usual defense brief gives the plaintiff the gift of primacy well in advance of opening statements.

The effective plaintiff’s briefing process starts with as powerful a salvo as you can muster in the first two pages, taking advantage of the relative permissiveness of the arbitration process, by which argument and fact, exposition and education may permissibly be set out before the presentation of evidence.

Consider the following beginnings of arbitration briefs and judge how well, if at all, certain basic objectives are met – before the arbitrator has finished the first two pages. Are the central medical issues of the case clear? Is it clear what the defendant did wrong, and that this error is so fundamental as to barely require expert testimony for a thinking neutral to feel the mistake? Is the causal connection between error and harm and the magnitude of the harm set out or obvious? If what is set forth in these two pages is confirmed by the evidence, can even a claims adjuster, who at some point will have to justify the ‘arbitration system’ to the public, reasonably criticize a plaintiff’s award? Is it readable? Has a conversational, potentially collegial or even personal – rather than overly formal – relationship been established between plaintiff’s counsel and the neutral arbitrator? Has the thinking neutral arbitrator been “drawn into” the case?

No. 1: Directly to the point

Somewhere, there may be a medical- malpractice lawsuit that requires an arbitrator to learn medical terminology or medical reasoning or how to tell which expert is more credible. There may be a medical-malpractice lawsuit that requires deep thought about how a physician’s error caused harm, and pondering how severe that harm is.

This is not that lawsuit.

When all a surgeon has to do to protect his patient is cut into and staple only those organs he has properly identified and which need to be stapled closed to permit safe removal of the gall bladder, in this case the cystic duct, and instead he staples closed three other ducts, all of which God intended to remain open to carry bile, leaving the patient with jaundice, life-threatening recurring infection of the bile ducts, and the need for multiple reconstructive surgeries, the thoughtful arbitrator need not tarry long in his decision.

The patient has the right to a surgeon who understands the earliest teachings of Surgery 101: “Know what you are cutting before you cut or staple it and only cut what needs to be cut.” In this case, as the films showing six misplaced staples will show, the defendant surgeon violated that basic right, and the harm was foreseeable, devastating and compensable.

No. 2: A more complex fact pattern, with a personal connection

When I was in training as a doctor, earning a pittance, I sometimes covered an Urgent Care Center over the weekend. My shift ended at 5:30 p.m. One Saturday, at 5:29, a gentleman appeared, demanding to be seen. I was tempted to send him to the Emergency Room but asked, ‘what’s his complaint?’ The nurses said, ‘He says he has something that is all things evil.’ I couldn’t help but laugh, and stayed to see the patient. I had forgotten the power of that phrase, over the years, until I looked at the facts of this case, and realized that it applied to this defendant surgeon’s conduct.

The plaintiff, a lawyer, a litigator who earns his living speaking to juries, was sent to the defendant surgeon because the lawyer’s serum calcium was high. It was only slightly elevated. It had been at that same level for five years, showing no upward trend. There were no signs of harm from this minimal elevation. Five minutes into a literature review, it was clear to any inquiring soul that such patients should simply be followed, since the large majority of them never develop signs or symptoms, and die over the usual course of time at the usual, average age, from other causes.

But the defendant surgeon, three weeks from retirement, saw the chance for one more fee.

Disregarding the literature, he told the lawyer this was a “surgical emergency” requiring removal of a parathyroid tumor. He cited alarming potential complications of elevated blood calcium, misleadingly mentioning complications that occurred only with massively elevated calcium levels. He failed to tell him that virtually all such adenomas were benign.

Then, instead of obtaining appropriate MRIs of the neck to find out which one of the four parathyroid glands contained an adenoma, which would have permitted a focused, limited (though still unnecessary) surgery, he explored the entire neck, to evaluate all four areas of the neck where parathyroid glands might sit. When he began surgery, he failed routinely to mark with a ligature the recurrent laryngeal nerves, which course close to the parathyroid glands, and which control the movement of the larynx, and thereby the ability of this lawyer to properly speak.

He found and removed an adenoma from one parathyroid gland (which far more likely than not would have remained asymptomatic for the rest of the lawyer’s life) but in exploring the rest of the neck, cutting near the normal parathyroid glands, having failed to mark out the critical nerves in the area . . . he cut the left recurrent laryngeal nerve, leaving the litigator with permanent deep hoarseness, and a voice – which formerly had been booming, imposing and effective (you will hear a TV interview of the plaintiff pre-op) – that now, post-op, required great patience and perceptiveness for any listener, juror or otherwise, to understand.

This surgeon, on the way out the door to his retirement, performed as his last operation one that was entirely unnecessary, for a condition that was likely to remain asymptomatic for life and which could have been dealt with safely surgically later, had it, improbably, become symptomatic; without the routine preoperative radiographic evaluation that would have limited the surgery to the one area that had an adenoma; and then without marking out critical nerves that needed to be avoided. While exploring one of the areas which needed no exploration, he cut the nerve whose function the lawyer needed to earn a living.

The surgeon commenced his scheduled retirement within the month.

It is hard to imagine a case in which a surgeon could make more errors at so many potential “avoidance-of-injury” points, the engine for such misconduct being such shameful motivation. The defendant’s surgical care here was, indeed, ‘all things evil.’

No. 3: A historical reference, based in the failure to use current technique, with education in the critical but sophisticated technique

In the 21st century, a patient has the right to expect 21st-century medical care.

Mrs. Doe came to defendant neurosurgeon Dr. X for a three-level cervical spine fusion. One of the hazards of surgery around the spinal cord had been, until thirty years ago, damage to the cord from retractors, surgical pressure or bleeding – damages that were not visible to the surgeon when they were still early and reversible. An ingenious method of discerning early changes in cord function was devised late last century: SSEP . . . somatosensory evoked potentials. This technique, applied during the operation, involves stimulating nerves in the arms and legs at the same time the patient’s EEG is taken. When the nerves in the arms and legs are stimulated, the brain wave responses to the carried pain messages are recorded on the EEG. The speed of conduction of the nerve impulse and its strength, or amplitude, are measured.

For the nerve impulse to get from the limbs to the brain, it must pass through the portion of the spinal cord being operated on. If the neurosurgeon is beginning to injure the cord, the nerve impulses are slowed and dampened . . . the amplitude of the EEG wave is diminished, and the time it takes for the impulse to reach the brain, the latency, is increased. Using this technique, otherwise clinically invisible but early, reversible cord compromise can be diagnosed and the surgeon can stop the operation, find and remedy the cause of the dysfunction, and avoid permanent cord damage. SSEPs have been routine in such surgeries for decades: they are, in fact, routine at the defendant surgical facility.

Mrs. Doe was hooked up to SSEP at the start of the procedure. However, the technician who runs the SSEP machine was called to the hospital’s neurology clinic to perform an outpatient EEG. Dr. X had a busy day scheduled. He decided not to wait for the tech’s return, and proceeded with the cervical fusion without SSEP measurements. An old timer, he had performed these operations without these ‘new-fangled’ monitoring systems.

Mrs. Doe woke up quadriparetic. Despite extensive physical therapy, she has made little progress; the quadriparesis is permanent.

‘I can’t understand why this happened,’ Dr. X told us at deposition, ‘there was no warning to me that the cord was being injured.’

I asked Dr. X what he had done to protect his patient from cord injury that could not have been done by a neurosurgeon in the year 1950. He had no response. Neither did his counsel or his experts.

Mrs. Doe, operated on in 2009, had the right to the protections of 21st-century medicine. She did not get them. What she suffered was precisely the permanent, devastating harm which the omitted monitoring technique was designed to prevent, and which, as shown by universal acceptance of the technique because of salutary results, foreseeably would have been prevented.

No. 4: Damages-oriented

Nothing moves the human spirit to despair as much as a child who is disabled for life at the instant of birth. The injury of a child during labor never proves a point, or advances a cause. It carries, always and without exception, a proper feeling of wasted opportunity, unfair deprivation and injustice. When that injury proves to have come about not because of an act of God, but as the result of ignorance and lack of caring by physicians in whom the parents’ trust was placed; when the injury is from a perinatal event that was foreseeable and eminently treatable, yet was not foreseen, diagnosed or treated; when the physician fails to bring to the analysis the sophistication even of an alert third-year medical student, then the anger about the injury is no longer free-floating or unjustified.

In this case, Dr. X, the obstetrician, knew from his medical school teaching (Ex. 1, pages from his own medical school Obstetrics textbook) that every day past the due date carried an increasing risk of dangerously diminished amniotic fluid, “oligohydramnios,” which in turn carried an increased risk of hypoxic fetal harm during delivery, and required daily testing of the baby’s integrity through “non-stress tests,” with induced labor if the baby showed any signs of compromise.

Dr. X knowingly did no such testing as the pregnancy went nine days overdue.

Once labor begins in such a late-delivered baby, fetal hypoxia must be addressed immediately, with Caesarian Section done at the first sign of fetal distress. Dr. X was not available during even the later portions of labor, and when the foreseeable prolonged and deep decelerations appeared on the fetal heart tracing, indicating that the baby was in trouble, Dr. X took twenty-five minutes to come to the hospital to deliver the baby. Twenty-five minutes . . . more than twice the time it normally takes for a baby’s brain, if hypoxic, to be massively and permanently damaged, a delay long enough to make the child’s life and her parents’ life revolve around custodial care and sorrow about what might have been. This form of sequential negligence, of avoidable harm, should not occur. It did, and that is why we are here.

“Tools” the arbitration brief can give to the neutral: what works

If the first two pages draw the neutral into the case, the rest of the brief serves two purposes: to set out a clear evidentiary pathway confirming the assertions of the first part of the brief, and to set out analogies, explanations, sequences of evidence, and “undisputed” pieces of evidence which the neutral can use in making it clear not only that he believes the plaintiff should prevail, but that the claims adjuster must understand the justification for that decision.

Here are several principles I’ve found effective:

• Arguments that show a series of negligent acts or decisions are often more powerful and ultimately useful to the neutral than assertion of a single error.

Occam’s razor is not always the best guide.

• Those theories grounded on assertions with which the defense cannot or does not disagree are the most powerful: look for “undisputed” medical facts as cornerstones of theories; avoid “he said-she said” issues.
• Use common-sense arguments and creative analogies.
• Be flexible with the genre, which permits the assertion of clear, interesting, technologically advanced and educational evidence as part of the arbitration brief.

For examples, I’ll use the fact pattern of a recent arbitration won by plaintiff, in which I served as party arbitrator:

Defendant surgeon performed a routine hernia repair on plaintiff, another physician, who had had low grade prostate cancer, removed five years ago, with clear margins and absent metastasis, with PSAs done every three months since, all being zero.

The defendant, flattered by being chosen by his colleague to perform the operation, decided that he had better be on the lookout for metastatic prostate cancer during the hernia repair. When he saw a small soft-tissue lump in his operative field, he decided this could represent metastatic prostate cancer in a lymph node. He biopsied it. He claimed that the object biopsied was, to his exam, separate from the colon. He asked a pathologist to come to the operating room to review the specimen. The pathologist told him that the specimen was not a lymph node. The surgeon did a cursory look around the biopsy site, then closed up.

In fact, the surgeon had biopsied a diverticulum of the colon, perforating the bowel. The patient wound up with a chronic disabling abscess with localized peritonitis, and ongoing leakage, requiring several surgeries first to drain the abscess, then to resect the segment of bowel around the perforation, resulting in chronic pain and substantial lost time from his medical practice.

Setting out the negligence as a series of errors

In practice, most medical disasters don’t occur as the result of a single error. In medicine, there are normally multiple areas of overlapping responsibility, fail-safes, places at which errors can be recognized and corrected . . . multiple places at which the train which ultimately runs over the cliff could have been diverted.

This “sequence of negligent acts” adds materially to the force of the plaintiff’s case with the neutral and the claims adjuster. Further, it gives the neutral a “buffet” of negligent acts from which to choose the foundation of his opinion for the plaintiff.

Here, error #1 was: with zero PSAs over five years the likelihood of metastatic disease approaches zero, so there was no need to aggressively look for prostatic metastasis. Error #2: ignorance of the fact that the pattern of metastasis of prostate cancer does not involve nodes in the hernia repair operative field; if the soft tissue the surgeon biopsied was a metastasis, the cancer would already have been demonstrably widespread. Error #3: the surgeon did not recognize basic anatomy, i.e., that the structure he biopsied was not a lymph node. Error #4: the surgeon did not accurately ascertain what he was cutting before he biopsied it; it was a colonic diverticulum, making the biopsy the agent of perforation. Error #5: when a pathologist told the surgeon that the specimen was not a lymph node, the surgeon failed competently to trace out the anatomy of the organ he had biopsied to find its attachment to the colon, when oversewing would have avoided the later complications.

At arbitration, the neutral arbitrator had a choice of five errors on which to fix liability; in fact the error that was central to the plaintiff’s award was error #5.

In the first example set forth above, where the surgeon wrongly stapled multiple bile ducts closed, the defendant could have adhered to basic training about “identifying before you cut”; he could have had the site of the initial stapling confirmed by his assistant surgeon; he could have done an operative cholangiogram after each stapling or at any time, and removed or repaired the wayward placements before closing.

In the second example, where the surgeon cut the lawyer’s recurrent laryngeal nerve, the surgeon could have been informed of the literature counseling observation rather than surgery; could have limited his surgery to one portion of the neck through appropriate preoperative radiographic localization of the parathyroid adenoma; could have understood that once he found an adenoma in one of the four parathyroid glands, further exploration was needless since there are never multiple adenomas; could have marked out the recurrent laryngeal nerves at the start of the surgery, for easy avoidance; and could have been more careful in his final exploration, avoiding cutting the nerve.

In the final, obstetrical example above, the physician could have done daily non-stress testing after the due date, in all likelihood scheduling an earlier elective Caesarian section; could have instructed the nurses to make sure the operating room, with anesthesiologist nearby, was available at the very start of labor; and could have been available to perform the emergency C-section with the first prolonged fetal heart deceleration opening, within the time period needed to preserve the baby’s brain.

Emphasizing arguments with which even the defense expert cannot disagree

Such arguments give the neutral considerable leverage with the claims adjuster. In the bowel-perforation case, despite testifying to the absence of a violation of the standard of care, a perennial defense expert had to admit that “a surgeon needs to know what he is cutting before he cuts” and that “once you are told that what you cut was not what you thought you had cut, the surgeon must figure out what he had cut before closing up.” This concession permitted the neutral arbitrator to focus on the surgeon’s failure to react appropriately to the pathologist’s conclusion that the biopsied organ was not a lymph node, a failure that the experts from both sides conceded was negligent.

Use of common-sense arguments and creative analogies

In the perforation case, the failure of the surgeon to realize that the biopsied organ was part of the colon and his testimony that he was sure the biopsied entity was “separate” from the colon permitted the use of the analogy of “an island versus a peninsula.” As related to the colon, lymph nodes are “islands,” completely separate; a diverticulum is a “peninsula,” anatomically connected. This analogy was effective.

“Common-sense”arguments may deeply impeach defense theories. In one case in which the defendants argued that severe abdominal pain immediately following a cholecystectomy did not obligate the surgeon to consider complications of surgery, we wrote in our arbitration brief: “We submit that if plaintiff was walking down the street, and was hit in the left hip by a truck that jumped the curb, went to the doctor and was told the new left hip pain was probably arthritic; or if he were hit by lightning, woke up with a headache, went to the doctor and was told he might have a brain tumor, we’d all shake the doctor, and tell him to pay attention to what had just preceded the symptom. Yet the surgeons in this case, having just done surgery on the gall bladder, where bile leaks and perforations are known causes of post-operative pain, argue that the pain and the surgery were unrelated. Incredible.”

Flexibility with the genre: using exhibits and even videos as part of the brief

In a case in which a doctor failed to react to an EKG that showed changes of early pacemaker failure, sending the patient home without remedy to faint, then die at home in cardiac arrest, the story of liability and causation was told by including in the brief an annotated EKG strip from the date of the negligent omission, with an arrow showing where significant heart block appeared, immediately above the flat line that came later.

In the neurosurgical example above, about failure to monitor nerve impulses from the limbs to the brain during spine surgery, a single page – the upper half showing a normal SSEP, with normal EEG latency and amplitude clearly marked – above a typically abnormal “early injury” SSEP, showing prolonged latency and a dampened impulse, accomplishes the same. A clear picture of the x-ray whose interpreter missed a small lung cancer just above a later film showing growth and widespread metastasis is powerful, as is, in the obstetrical example above, one page from the OB textbook used by the defendant during medical school, setting out the dangers of failing to monitor post-date fetuses. Each of these brings a concreteness to the arguments in the brief much as visuals during trial add to the effectiveness of oral argument.

In the bowel-perforation case, plaintiff’s attorney inserted a video into the electronic version of the arbitration brief. When you came to a particular part of the brief, your cursor would open the video – at one point to the pathology report, showing that what the surgeon called a “lymph-node biopsy” contained no lymph tissue at all; at another to show a view of a later barium enema showing the diverticulum; at another, a page containing a color diagram of colonic diverticulae, showing the connection to the colon, present by definition; at another, an excerpt from an impeaching deposition. Brilliant work, and the wave of the future.

Conclusions

The relative informality of the arbitration setting permits you to give a calculated closing argument, complete with supporting evidence of every type, at a time in the litigation when you still have primacy; all to a busy neutral who appreciates a skillful presentation of the case and who needs, and may be happy to be given, the tools to enable him to give a plaintiff’s verdict in circumstances that minimize personal comeback. Plaintiff’s counsel should use this opportunity early and wisely.