Getting your medical-malpractice case settled

In medical malpractice, the best cases settle – if the defendant consents – and the weaker cases go to trial

2015 November

Attorneys should be prepared to go to trial with every case they file; however, the vast majority of cases are not finalized by judgment. Many cases are dismissed and many more are settled. Telephone calls or lunches between opposing counsel may have been a common way of settling cases in the past, but more and more, cases are resolved in mediation.

It has been said that in personal-injury cases it is wise to settle the softer cases – those with significant problems or with small damages – and take strong cases with large potential damages to trial. The opposite is true in medical-malpractice litigation: you settle the stronger cases and end up having to try the weaker cases. There are multiple reasons for this, some being the need for the health-care provider’s consent to settle, the potential difficulty proving causation, and perhaps most importantly, the MICRA cap on damages.

Cases get settled because of the unknown and the need to reduce the risk of the unknown. In major personal-injury cases, non-economic damages for loss of functionality or even death can be many times the economic damages.

If the jury awards millions or even tens of millions for pain and suffering in personal-injury cases, absent post-trial motions the plaintiff gets to take that money home. So, while there is risk in taking any case to trial, the upside potential in a personal-injury case may be great and worth the risk. This upside potential is not lost on the defense.

However, with the MICRA cap, if the potential judgment in a medical-malpractice case is over $1 million, the damages are mostly economic damages, as no matter what the jury awards the plaintiff may only keep $250,000 in non-economic damages. While the sides may not agree on aspects of the economic damages, such as present-value calculation, the need for various services, or even loss of earnings, the upside loss – or perhaps a better term in the defense’s view would be the potential downside of taking the case to trial – can be calculated: a maximum of $250,000 per claim, plus economic damages that can be proven. So, the risk of the unknown is less in med-mal cases, as is the willingness to settle weaker plaintiffs’ cases.

It is common knowledge that the defense wins the vast majority of med-mal cases that go to trial. Approximately eighty percent of med-mal trials end up as defense verdicts in California. While that may be an imposing number, it is skewed because good cases get settled. Good med-mal cases get settled for the same reasons personal-injury cases get settled: the facts and the preparation by plaintiff’s counsel.

Preparing for mediation

Although you must anticipate that every case will go to trial, there are ways to maximize the likelihood you will be able to obtain a reasonable settlement for your client, precluding both the financial and emotional risk of a defense verdict.

I often see mediation briefs that appear to be hurriedly put together at the last moment. While the actual brief writing may be done at the last minute and subject to the time rigors of a busy practice, preparing for mediation should begin long before the subject of mediation is broached by the parties. The time to start preparing for mediation or resolution of the case short of trial should begin with the first contact with the prospective client. Remember, good cases get settled and the tough ones go to trial.

Just the facts, please

Early development of the case is critical, especially the facts of the case. What a plaintiff relates as statements she made to the doctor may be inconsistent with what is found in the medical records; therefore, a careful review of the records must be done. Similarly, what the plaintiff relates she was told by the doctor may also be in conflict with the medical records, which, unless later altered, were created at the time of the interaction. If inconsistencies are found, they must be clarified. The facts are the foundation of the case, and while a thorough understanding of plaintiff’s recollection of the facts and how they compare to the medical records may be time consuming, it is of major importance because you must then relate the facts to the science.

Medical research done in conjunction with experts, or at the very least comprehensively by plaintiff’s counsel, is a must. Correlation of the facts with the science leads to the theory of the case and it should be developed and locked in early. Once it is, it is important to get this information to the defense as soon as reasonably possible. You don’t want to let the defense develop the case only from the viewpoint of their client or retained experts without input from plaintiff’s side. Retained experts may have their own agendas, one being money. Experts make a lot of money reviewing records and discussing the issues with counsel, but make much more preparing for and giving testimony at trial. So, it may be in their best interest to give opinions that do not favor an early resolution of the case.

While you need to present your case early and clearly, before defense counsel’s belief in their case becomes locked in cement, you must be careful not to put yourself into a position where you have to change your theories. Even if the change in theory is necessary and proves to be correct, this is not well received by the defense and especially the insurer. A defense attorney living with a case may see and understand what may be a stepwise change in plaintiff’s case; however, the change may seem sudden to the claims adjuster and it is often perceived as a lack of sound expert support. This may then affect the defense’s willingness to discuss settlement or, perhaps, will reduce the amount of money they wish to offer.

The real decision maker as to how much money, if any, the insurer is willing to pay to settle a case is typically a decision by a committee following a presentation by defense counsel. The limit of the claims adjuster’s authority at mediation may be less than that approved by the committee and thus the adjuster may be able to “make a call” and get additional money to settle a case when the parties are close. However, there are times when the claims adjuster’s limit of authority at mediation is absolute and the only way for the defense to get more to settle the case is by another presentation to the committee.

Since the way of getting your best case heard by the claims committee is through defense counsel, it doesn’t pay to play hide the ball with opposing counsel. By providing a detailed summary of your case, supported by the medical record and journal articles, you may be able to get some traction with defense counsel early in the game. Although it is defense counsel’s job to defend his client, sophisticated medical-malpractice defense attorneys understand when it is in their client’s best interest to settle a case and when to take a case to trial. You want to give them information that allows them to plant the seeds leading to settlement early on.

While acting in a way to provide defense counsel with information supportive of your case may garner you an ally in defense counsel, there may still be a major obstacle to overcome before fruitful settlement discussions can begin, and that is the defendant health care provider, especially if the provider is a physician.

Consent to settle

The first 2 letters of MEDIATION are ME. Each party’s only concern is ME, and I don’t mean the mediator.

The goal of plaintiff’s counsel is to get the best settlement for their injured client, who may be dealing with lifelong injuries or disabilities or even with the loss of a loved one. The plaintiff may be unable to work due to his disabilities, and compounding that, his medical expenses may be far greater than his financial resources. It is certainly reasonable, and expected, for plaintiff and his counsel to be thinking of ME.

However, in the other room(s), self-interest is also primary. Getting the health-care provider’s consent to settle is required in almost all cases before even the smallest offer can be made, and this can slow down or totally obstruct any settlement discussion.

There are multiple reasons why a particular physician withholds consent. Some which may come into play are:

• In the mind of a physician, giving consent is not an admission she might have done something wrong; it is an admission she did something wrong, and that it caused significant harm. It goes to the very core of her self-respect, confidence, and her oath to “do no harm.”
• Business and Professions Code section 801 requires that settlements over a certain amount, that being $30,000 for physicians (M.D./D.O.) be reported to their respective licensing board. Being reported to the licensing board is a significant concern for a physician. If he has never settled a case before, he fears the unknown. He doesn’t want to go through an interrogation process by the board in addition to what he has already been through in litigation. If he had prior settlements, he may understand that in most cases nothing is done by the board. However, if the prior settlement led to a board inquiry, he is loath to accept another round of inquisition and the potential for sanctions or public reproval.
• Potential increase in medical-malpractice premiums.
• Loss of patients and income. With changes in health-care insurance and consolidation of insurers and medical practices, physicians have to compete for contracts to be in an insurer’s HMO or on its select-provider lists.

Physicians are often caught between having to accept a lower reimbursement through the contract and losing a significant number of patients if they can no long care for those insured by a major provider, e.g., Blue Cross or Blue Shield. To get on a provider’s list, physicians need to apply for a position and that application includes detailing medical-malpractice cases, which may affect getting a contract. This is often true just to stay on a panel. So, settlements become known, regardless of how small, and this comes with the potential for significant economic impact. This potential will not attach to a defense verdict at trial.

All this comes into play in getting a physician’s consent to settle, and understanding it is the first step. Working through it is the next step and it is best to begin long before mediation by making a strong case early. Lay your case out so defense counsel can set the stage for discussion about settlement with their client.

Some of the groundwork toward getting a physician’s consent can be laid in deposition of the defendant. There are a number of prevailing theories on how to go about a defendant physician’s deposition. One way is to just get the facts; ask questions to lock in the defendant for cross-examination at trial. This technique may help avoid animosity by the defendant toward plaintiff’s counsel, something that may hinder getting consent to settle. However, if the questioning appears too easy, the defendant may think giving testimony at trial will be a walk in the park and decide to take his or her chances.

Another method is going strong at the start, letting the doctor know that litigation is tough. While this may work with some physicians, it may backfire. The best approach is to feel out the situation at the start and be tough when you need to be, and most importantly know the case and know the medicine. If you can ask questions which show a strong understanding of the medicine, not just terminology, but something of the art of medicine, the physician will know he has a worthy opponent and this will play a part in his or her decision regarding consent.

Further, the mediator can be an adjunct to getting consent. Don’t necessarily balk at defense counsel’s suggestion of mediation even if they haven’t obtained their client’s consent to settle. In such instances, defense counsel likely has some inclination that consent may be obtained at the mediation and the mediator can play an important part. On multiple occasions I have been told by defense counsel that they were seeking my help in getting their client’s consent.

As much as I don’t like using generalities, I will make one here: Doctors don’t like or trust lawyers, often not even their own lawyers. Physicians will hear stories about a colleague who didn’t listen to his attorney’s advice to settle and won a defense verdict. This fosters an attitude that neither the insurer nor the attorney hired by the insurer really understands their position. Physicians want to be heard and understood, and it is important for the mediator to do just that. Depending on how the mediator’s interaction with the defendant physician plays out, the mediator can be lumped together with those who are just pushing him to settle for business reasons, or someone who has listened, understood, and helps him come to the best decision for himself, the ME in their room.

In light of this, the benefits of your early preparation should be provided to the mediator. In most instances I do in-depth research into the relevant medical issues of the case, but you should not assume this is universally true. If you want the mediator to demonstrate the strengths of your case when he or she is in with defendants, provide the medical records and highlight critical aspects. In addition, provide medical literature support for your position, or at least bring it to the mediation so that it can be discussed if it relates to a stumbling block to settlement. If the defendant doctor attends the mediation, it should be assumed that consent is an issue and any chance you have to show the defendant that your knowledge of the medicine is not superficial, but multilayered, will be helpful.

A strong case got the defense to the table, but the fight is not over

A strong case for negligence and your early enlightening presentation may have gotten the defendant to discuss settlement; however, if the science provides an opening to contest causation, this will be the defense’s fallback position. In personal-injury cases, for instance a low-impact auto accident, a jury might reduce the general damages to a plaintiff with soft-tissue injuries, particularly to the back and neck, if there is a prior history of similar complaints. In med-mal, they may knock the case out completely.

By answering “Yes” to Question 1 (negligence) and “No” to Question 2 (causation), the jury can tell the doctor, “You did something wrong and don’t do it again” without slapping them with a penalty. Remember, juries generally like doctors. Therefore, the issue of causation and the potential defense arguments must be fully understood prior to mediation so they can be countered.

There is no room in this article for an extensive discussion on the element of causation in medical-malpractice cases, but I would like to mention a few instances which often come into play or might be helpful in getting a case settled.

Causation must be proven to a reasonable degree of medical probability. (Jones v. Ortho Pharmaceutical Corp. (1985) 163 Cal.App.3d 396.) In wrongful-death cases, this means that if not for the negligence, the decedent would likely have survived. In cancer cases, this means that when the diagnosis should have been made, the stage of the cancer was such that timely treatment would have afforded a greater than 50 percent chance of a five-year survival, generally considered a “cure” for litigation purposes. (Bromme v. Pavitt (1992) 5 Cal.App.4th 1487.)

This can be quite a complicated issue. Because it is impossible to say any particular patient would have survived her cancer with earlier diagnosis, the causation element is based in statistics. Such statistics, typically based upon the stage of the cancer, are readily available. The stage of the cancer is usually determined using the TNM classification, where the “T” relates to the primary tumor itself, the “N” relates to whether or not lymph nodes are involved (and often how many or their location), and the “M” deals with metastatic disease beyond the lymph nodes.

Determining the stage of the cancer at the time the diagnosis should have been made is often not clear. The difference between a stage where a cure was likely and the terminal disease discovered later may be as little as a single lymph node or as large as 3-to-4 centimeters of primary tumor. In general, the longer the delay in diagnosis, the greater the ease in proving that the negligence caused a significant worsening of the cancer stage and, thus, the likelihood of survival. Be prepared for a tough causation fight at mediation if the delay in diagnosis is short or the patient had far advanced cancer at the time of diagnosis.

As per Bromme v. Pavitt (supra), California does not allow for the “lost chance” doctrine – meaning that if the decedent’s likelihood of cure was less than 50 percent when the diagnosis should have been made, the element of causation cannot be proven. However, arguments similar to lost-chance can be made if the injured patient/plaintiff is still alive. In such circumstances the plaintiff can claim that had the diagnosis been made earlier he would have had the opportunity for a less invasive form of treatment or a longer life expectancy, although not a cure. (See James v. U.S. (1980) 483 F.Supp.581, citing Coffee v. McDonnell Douglas Corp. (1972) 8 Cal.3d 551.)

An additional point I would like to make on causation is that statistics can work both for and against you, so be prepared with literature to support your position. An illustration of this is a case of mine when I was in practice. That case involved a seven-year delay in diagnosing my client’s renal-cell cancer. When the cancer was eventually diagnosed, it was Stage III by the TNM classification, which statistically afforded him a greater than 50 percent likelihood of cure. However, in my research I came across a comprehensive study out of UCLA which considered other characteristics such as nuclear grade of the tumor and whether or not there was necrosis present in the tumor. Using the results of this study, I was able to show that the plaintiff had only a 41 percent chance of cure at the time of diagnosis.

Crossing over from the 50 percent chance of survival line in the TNM classification to below 50 percent based upon the UCLA study was important to settling the case. Because it could be claimed that the plaintiff was more likely to die from his cancer, it essentially became a wrongful-death case, but with added damages. Applying the “lost years” doctrine as espoused in Overly v. Ingalls Shipbuilding, Inc. (1999) 74 Cal.App.4th 164, the plaintiff who statistically was going to die within 5 years and had a fully vested pension plan was able to claim his entire pension as damages despite the fact that his surviving wife would still collect the vast majority of his pension after he died. Through the use of statistics obtained from the medical literature, the plaintiff’s potential damages at trial were increased. This posed additional incentive for the defense to settle, and for more than without the additional damages.

The last item I would like to mention, and which is somewhat related to causation, is the opinion of treating physicians. Treating physicians generally don’t wish to get involved in litigation and, even more so, don’t wish to voice standard-of-care opinions. However, getting them to provide opinions on causation, especially if they shared them with their patient/plaintiff, may affect the outcome of a mediation or, if necessary, trial.

If they haven’t already been deposed, be prepared to discuss the opinions of the treating physicians at mediation, as their opinions may carry significant weight. Plaintiff and defense will each have experts supporting their side of the case, and it is understood that at trial a jury may wash out this offsetting expert testimony, especially when they hear the amount of money the experts were paid to testify. If that’s the case, the jury may well turn to the “non-retained” treating physician.

Not being a hired gun, the opinion of the treater may be determinative on the issue of causation. The outcome of this testimony can be likened to playing roulette. If you bet red and it comes up red you win, but you lose if it comes up black or green. Because the plaintiff must prove all elements of her case, including causation, if the treating doctor says something like, “I can’t say the delay made a difference,” or that “the plaintiff’s present condition might still be the same despite the treatment/procedure in question,” this is a ball landing on green. Such testimony, while perhaps benign on its face, is actually a big loser because it doesn’t prove causation to a reasonable medical probability. However, if the treating physician holds the opinion that the defendant’s care caused the plaintiff harm, this is strong, perhaps winning testimony, especially if the treater has true expertise in the field.

Conclusion

So, while the theme of this article may seem to be the antithesis of being a trial attorney in that it is directed at resolving a case short of trial, work done to prepare a case for settlement is of prime importance, even if the case doesn’t settle. If there is sufficient money offered to settle, you can assure your client that this means the defendant, defense counsel and the insurer, all sophisticated and with an understanding of the facts and medicine of the case, believe your client had a good chance of winning at trial.