Analyzing A Medical Malpractice Case Who Drives the Litigation Machine? Plaintiffs' lawyers have the burden of finding and bringing the cases Running cases Lots of conflicts, some prosecutions Defense lawyers have to hustle insurance companies and medical businesses Just as ruthless, but more dignified How do Tort Lawyers Get Paid? Plaintiff lawyers Contingent fees 1/3 to 50% plus expenses, many want expenses reimbursed or fronted by the client, but it varies Defense lawyers Traditionally by the hour, plus expenses Some are now on bids What are the Incentives for Plaintiff Lawyers? Pick big cases Work them as cheaply as possible until you are sure they are good Drop them if they turn out to be hard Different from criminal law - it is always an economic decision Settle when you can Winning is good even if you lose on appeal What are the Incentives for Defense Lawyers? Hourly Drag everything out Be careful to not do critical things until the end Lots of dilatory practice Fixed fee See plaintiff's lawyers What is the Starting Point? Damages Injury More loveable than the defendants A person with legal standing to bring the claim The prima facie case you have to present to jury to be allowed to get a verdict Usually defined by the jury instructions The expert testimony to establish standard of care, breech, and causation Plaintiffs Who is the patient? Who else is claiming an injury? Spouse/Ex-spouse? Parents? Common law relatives? Bystanders? Who has the legal right/duty to bring a claim? What are the conflicts of interest? Who can you trust? Are you sure? Physician Defendants Who does the patient think did wrong? Who was the primary physician? Where there any consultants? Where there any hospital based physicians? You will need to review the records carefully to look for hidden physicians What are the legal relationships between the physicians and with any employers or contractors? Non-Physician Defendants Paramedical personnel Nurse practitioners? Physician's assistants? Nurse anesthetists? Other paramedical personnel Who is the employer? Who has the legal duty to supervise? Corporate Defendants Hospital Vicarious liability for employees Negligent supervision or retention of contractors Laboratories Product manufacturers and sellers Proof = Facts You win cases on facts and expert testimony, not on tort theories Where do you find facts? Medical records Witness interviews Informers Detectives Physician office records Patient charts Appointment books Any other records Physician's personal diary and records Hospital records Chart Nurses' notes Physician's notes Physician's orders Vital signs Tests Consent forms Off-chart records Private notes by staff Cardex Pharmacy records Lab records Risk management records Billing office records Pharmacy records Independent lab records Fact Witnesses Who knows something? Who did they tell? What was the negligence? Systems errors? Individual negligence? Cover-up? Bad faith? Timeline Analysis Grid Who knew what and when? Be able to show the jury the timeframe Timeline Analysis Person 1:00 PM ER Nurse Checked in patient ER Doc 2:30 4:00 6:00 Noticed bleeding Saw patient Told of bleeding Analyzing Cases Does the plaintiff get money from the ruling? What is not in the case? Settling parties Unappealed issues What is the timeline of the facts? What is the legal issue? How does the ruling deal with the legal issue?