How a Successful Litigator Decides Whether or Not to Sue You

by James W. Saxton, Esq.,^* and Maggie M. Finkelstein, Esq.^†

This article aims to help physicians and other healthcare providers understand what prompts plaintiff lawyers to take on medical malpractice cases and to name the healthcare provider as a defendant in the suit. The article provides strategies for reducing the possibility of being named in a suit as well as for creating appropriate, favorable evidence that can be used for the healthcare provider if he or she is named in a suit. By understanding the “pluses” that cause a lawyer to sue, the risk of being sued can be decreased.

Key words: Sue; the “plus”; better defense; risk reduction; preventing a lawsuit; creating appropriate evidence.

The answer to the question “How does a successful litigator decide whether or not to sue you?” is simpler than you might imagine. With decades of experience in defending physicians in medical negligence suits and in working with psychologists and jury consultants, the answer is clear. A successful litigator looks for the “plus.”

This is not to say that the case need not have merit. It must, and several states have enacted tort reform measures in efforts to ensure the same. For example, Pennsylvania enacted a measure in the Medical Care Availability Reduction of Error (MCARE) Act that requires plaintiff lawyers to serve a Certificate of Merit, essentially certifying that a qualified and appropriate expert reviewed the case and determined that it has merit. If not, the case is dismissed upon praecipe by the defendant. When we talk about the “plus,” we simply mean that there are certain circumstances that a successful litigator looks for when deciding whether or not to take on a medical negligence case, because the plus drives the value up.

Take for example, when the potential plaintiff enters the plaintiff lawyer’s office. An initial interview and evaluation takes place. The plaintiff lawyer is examining the potential plaintiff and determining whether he or she will make an effective and credible witness. Will the potential plaintiff be sympathetic to a jury? Remember, the jury is composed of patients! Jurors tend to impart their healthcare experiences on the factual situation presented to them—for example, their doctor was late for an appointment, their doctor failed to notify them of a test result, or their doctor failed to order a test.

Plaintiff lawyers have begun to incorporate “psychodrama” into their cases—a type of group therapy being used to connect with the jurors.

Knowing this, plaintiff lawyers have begun to incorporate “psychodrama” into their cases—a type of group therapy being used to connect with the jurors. Take for example, the following example provided in a recent L.A. Times news article:¹

CARLSBAD—The lawyer stood sobbing in the center of a darkened hotel conference room, ringed by dozens of other personal-injury lawyers. As the attorney recalled the final moments of his mother’s life, his voice cracked and his body shook with repressed grief. And all around the circle, the lawyers watching him also began to weep. Then the others began to make their own confessions: ‘My parents died,’ one began, his voice husky with tears. “I was disconnected from my father,’ another said. ‘All of a sudden, I thought about my mother,’ a third added.

The plaintiff lawyers are literally learning how to connect with the jurors (patients) on an emotional level.

This also means that the factual scenario presented to the plaintiff lawyer is important. The case will tell a story, one that the jurors (patients) can relate to. This means, again, the “plus”! For example, does the plaintiff’s story include service lapses and miscommunications, which could result in a large adverse verdict in the courtroom or the threat of the same, which could lead to consideration of an early settlement. For example:

Were there instances of inadvertent rudeness or insensitivity by your staff?
Did your office fail to notify the patient of an abnormal test result?
Did it take months for the patient to get an appointment with your office, and then the patient waited two hours for the actual visit? Was the visit then “rushed”?
After an adverse event, was there a failure to promptly provide information about what had happened?

After listening to the patient’s story, the plaintiff lawyer will move forward with obtaining your and all other relevant medical records—looking not only for that malpractice case, but also determining how difficult it may be to make the case based on the documentation. This makes your documentation very important—it can cause a plaintiff lawyer to take on or decline a case. For example:

Was there an accurate history and physical noted?
Was your handwriting legible?
Does it appear that an entry could have been altered?
Did you dictate a discharge summary two months after the discharge date?
How strong is your informed consent form?

Not only do plaintiff lawyers look for support in the documentation, but they also look for ways to disprove the documentation. For example, we have seen instances of this in which plaintiff lawyers do so with regard to nursing home litigation.

Plaintiff lawyers recognize that in nursing home litigation, the only documentary evidence is generated by the potential defendants, and often there is no direct evidence that contradicts the chart, especially since the nursing home resident often cannot provide meaningful information as to what occurred. Plaintiff lawyers have said that a complete chart does not necessarily mean that that care was provided. Plaintiff lawyers will analyze laboratory values to ensure consistency with documentation. If the lab values don’t match what’s in the chart, plaintiff lawyers will claim that what’s written in the chart does not accurately reflect the condition of the patient. They will fit this into the themes of dignity, vulnerability, trust, deception, betrayal, and indifference to inflame a jury and to increase the severity of any award or verdict. This drives home the importance of documentation and clearly documenting accurately.

In addition, the plaintiff lawyer will examine and evaluate the potential damages. There must be substantial enough damages for the lawyer to take on the case and to recover his or her legal fees. Most plaintiff lawyers’ fees are based on a contingency fee arrangement. This means the plaintiff lawyer gets paid only if the patient wins. The plaintiff lawyer will front substantial amounts of money on obtaining records, expert witnesses, and courtroom technology, which the lawyer will want to recover as well. Often, the plaintiff lawyer may front costs that total 35% to 40% of any settlement or award. A lawyer can spend $50,000 to $150,000 in litigating the plaintiff’s case. One public policy analyst, Herbert Kritzer, has commented that the economic realities are what drive a plaintiff lawyer’s decision on whether to take on a case.²

The good news is that more than ever before we know how you can prevent the “plus” and even create a better defense for yourself should you be sued.

For example, one lawyer specializing in bariatric surgery medical negligence cases has commented that he will not take on any bariatric surgery case unless there has been a patient death, because the damages drive the decision to take on the case. Or consider obstetrics, the medical specialty with perhaps the highest number of claims and claims paid on, as shown in the PIAA Closed Claims Data (1985-2005).³ Obstetrical cases are attractive to plaintiff lawyers because of the damage drivers: neurologically impaired babies or death. These types of cases are also those that pull at the heartstrings of jurors, making them amenable to the psychodrama plaintiff lawyers are now using.

Prominent psychologist and jury consultant Richard Waites, J.D., Ph.D., has said that medical and healthcare malpractice plaintiff attorneys take cases for the same reasons that other professional people accept the kind of work they undertake. First, it reinforces the attorney’s self esteem to take on a case that has an altruistic goal—to help someone that he or she believes has been victimized or to force improvements in patient care. Second, in most instances, the perceived monetary value of the case for the client and the lawyer appears to be sufficient enough to support the attorney’s cost of doing business and need for profitability. In a few instances, an attorney will take a case regardless of the possible revenue that might be generated, but such instances are limited in number for practical reasons. Third, many attorneys would like to leave a legacy that they have accomplished something extraordinary that has benefited other people.⁴
The good news is that more than ever before we know how you can prevent the plus and even create a better defense for yourself should you be sued.

SUCCESSFUL STRATEGIES THAT REDUCE THE RISK OF BEING SUED

Step 1

The first step to reducing professional liability risk is understanding where the risk lies in the first instance. This includes both clinical risk issues and risk management issues. We know that it is the combination that leads a plaintiff lawyer to more seriously consider taking on a claim. That is, there needs to be an adverse outcome in the first instance. It is then the plus that drives the plaintiff lawyer to take on the claim.

Some organizations are focusing on reducing both areas of risk. It takes substantial effort, time, and resources to do so, but it can be well worth the investment. For example, in obstetrics, if the clinical risks associated with what causes brain damage in infants at birth is identified, then appropriate clinical and risk management strategies can be designed and used to reduce risk of neurological damage in the first instance. This type of research is underway. The authors have collaborated with content experts in an effort to better understand root causes in the first instance and, further, to develop and create the tools that positively impact those areas of risk.

It is not only understanding the global risk, but also your specific risk; in other words, the risk in your specialty and in your practice. That is why a baseline risk management assessment using a data-driven audit tool is necessary. This allows you to focus on your risk. Doing so will allow you to incorporate risk reduction tools and strategies that affect that known risk in a positive fashion. Every practice should have such an assessment done as it is readily available at this point in time. These assessments are based on actual data and are specialty-specific.

Step 2

The second step to risk reduction is incorporation of tools and strategies to reduce known risks. Tools and strategies include communication strategies, service protocols, and documentation forms. As you can see from above, these types of risk reduction strategies are essential to preventing a lawyer from taking on a claim. In addition, even if a claim is not prevented, the communication, service, and documentation is your evidence—make it positive evidence!

Your documentation is essential as evidence of patient accountability and knowledge of his or her condition and treatment. We have seen time and again patient noncompliance or a patient alleging lack of understanding that is used against a physician, when in fact the patient was aware of risks and knowledgeable about the condition, but the documentation was not present. You can use documentation tools like at-risk letters, history form language, and procedure-specific informed consent forms to increase patient accountability and your evidence.

At-risk Letters

This type of letter should be reserved for the few patients who are truly putting themselves (and you) at risk. It is a last attempt to bring the patient’s care back on the proper track before a formal discharge of the patient. As such, when it becomes critical for a patient to be following physician advice or recommendations and he is not, this type of letter should be used and a copy of it placed in an at-risk file. It not only provides an opportunity for patients to bring their care back on track, but also provides an opportunity to remind them that you are counting on them, establishing some patient accountability. By making patients accountable for their own healthcare, data reveal that patient outcomes are improved, liability reduction occurs, and efficiency is improved.^5–8

History Form Language

We recommend inserting certain language at the beginning of the history form. This language is intended to let patients know that the information that they are providing is very important and that the doctor is counting on them to provide the needed information and to do so accurately. At the end of the form, we suggest inserting language below the patient signature line that provides an attestation by the patient. These additions work to place responsibility on patients at the same time that they provide us with useful documentation, which the patients have verified.

Informed Consent

A procedure-specific, second-generation informed consent form has proved to be effective nationally in reducing the risk of lawsuits based not only on lack of informed consent but also associated negligence claims. Patients often do not recall whether the possibility of the incurred complication was explained to them. If only a generic consent form was signed, then we are back to the age-old swearing contest. The physician says she explained the risk because she always does, and the patient says that the risk was never explained. A procedure-specific informed consent form can help. This type of form can also incorporate additional accountability and documentation principles. An introductory paragraph can set the stage that an informed consent is an important process. It should state that the patient should not sign it unless he or she has read the form and understands the risks and alternatives and has had all his or her questions answered. Next, the significant risks can be listed literally on the form. Not all of the risks are literally set forth, but the material risks. In addition, including language such as “the risks include, but are not limited to” means you will not get fenced in if a risk is missed and yet discussed by you. Finally, make the witness verify that the patient read the form, understands it, and has no further questions. This makes the witness a true witness and not one that is merely witnessing the patient’s signature. This is very discouraging to plaintiffs’ attorneys that are contemplating a claim against a provider.

Step 3

An event management program is key to reducing liability risk. Event management is a process whereby support can be given after an adverse event occurs in an effort to ensure that good communication and appropriate documentation occur. We know many decisions to go see a lawyer are made in the first 24 hours post-event. In addition, all post-event information will be evidence. Let it be used for you instead of against you! Make it positive evidence. Event management may mean having a meeting with a patient and/or family members to discuss patient care, so that everyone is on the same page and to answer questions and address concerns that have been raised. It may mean taking the time to thoughtfully respond to a patient letter that contains a complaint or concern. It can take several forms, and every situation will need to be managed differently. Through an effective and efficient event management program, you can impact communication and documentation and ultimately patient satisfaction. Data reveal that unsatisfied patients often file claims.^9–11 You can also use your event management process to prevent future, similar occurrences by learning from the immediate event. Incorporate risk reduction strategies to do so.

As you can see, every step along the way you are creating evidence—when you incorporate a new tool, when you incorporate a new strategy, when you document, when you communicate, when you provide good service, when you send a letter, when you document the informed consent process, and when you manage an event. The goal is to ensure that the evidence is favorable and positive (and appropriate).

CONCLUSION

Plaintiff attorneys need an adverse outcome in the first instance. However, we are seeing that often that is where the decision starts not ends. Lawyers will look at how to use the presence or absence of documentation and the plus factor as well as witness credibility. Your documentation, communication, and service are your evidence that can support your care but also prevent attorneys from taking on cases with bad outcomes. It is time for medical practices to significantly change their liability equation, and fortunately they can. The authors have seen this be successfully accomplished in practices throughout the country by incorporating in a serious way the strategies discussed in this article. In addition, these strategies are also good for patient care.

Additional articles from The Journal of Medical Practice Management:

Garrison J. Lawyers learn to share their pain with jurors. L.A. Times. Nov. 24, 2006.
Kritzer H. Risks, Reputations, and Rewards: Contingency Fee Legal Practice in the United States. 289 n.20 (2004). Stanford, CA: Stanford University Press; 2004.
Physician Insurers Association of America. Closed Claims Data (1985-2005); Rockville, MD.
Waites R. Personal communication; May 7, 2007.
Spath PL. Partnering with Patients to Reduce Medical Error: A Guidebook for Professionals. American Hospital Association; 2004.
Saxton JW, Finkelstein MM. Five-Star Customer Service: A Step-by-Step Guide for Physician Practices. Marblehad, Mass.: HCPro, Inc.; 2005.
Saxton JW. The Satisfied Patient: A Guide to Preventing Malpractice Claims by Providing Excellent Customer Service. Marblehead, Mass.: HCPro, Inc.; 2003.
Kraman SS, Hamm G. Risk management: extreme honesty may be the best policy. Ann Intern Med. 1999;131:963-967.
Hickson GB, Federspiel CF, Pichert JW, Miller CS, Gauld-Jaeger J, Bost P. Patient complaints and malpractice risk. JAMA. 2002;287:2951-2957.
Levinson W, Roter DL, Mulloolly JP, Dull VT, Frankel RM. Physician-patient communication: the relationship with malpractice claims among primary care physicians and surgeons. JAMA. 1997;277:553-559.
Hickson GB, Clayton EC, Githens PB, Sloan FA. Factors that prompted families to file malpractice claims following perinatal injury. JAMA. 1992;267:1359-1363.

Reprinted with permission from The Journal of Medical Practice Management, Copyright Greenbranch Publishing, (800) 933-3711, www.mpmnetwork.com.

*Co-Chair, Stevens & Lee Health Law Department, and Chair, Health Law Litigation Group, Stevens & Lee, 25 North Queen Street, Suite 602, Lancaster, PA 17608-1594; phone: 717-399-6639; e-mail: jws@stevenslee.com.