A medical malpractice case lands on your desk. What is your first
thought? What is your plan? If you’re stumped or not sure where to
begin, studying the anatomy of a successful medical malpractice
case may be in order.
Pre-litigation planning. Selecting expert witnesses. Conducting
discovery. Submitting motions in limine. Crafting closing arguments.
You have much to contemplate and much to prepare. The following
will guide you through decisions that may help you prevail, regardless
of whether you sit on the plaintiff or defense side of the table
Make Sure the Juice is Worth the Squeeze
A plaintiff attorney needs to review all factual evidence, taking into
account the number of defendants and experts and the complexity
of the claim. You’re responsible for every piece of the puzzle, and
assembling them will draw heavily on your physical, emotional and
financial resources—perhaps more so than any other type of case.
Will you or can you make the commitment?
Brandon Bass of The Law Offices of John Day in Tennessee advises
that you “make sure the juice is worth the squeeze.”
Bass goes on to say that if you can get a victory, but it’s worth only
slightly more than minimum wage based on how long it took you to get
there—and it required you, in the process, to post up $100,000 worth
of capital for hard costs to reach that point—you would have been
much, much better off going on vacation and investing the money in
the stock market.
In short, medical malpractice litigation can be a costly and time-eating
proposition, you need to know that in the end it will have been worth
your time and your hard work—for you and your client.
Organize or Die
Once a case is accepted, the pre-litigation planning begins for plaintiff
counsel. The defense attorney typically won’t enter the picture until
after the complaint is filed, but the planning stage is much the same.
Organization is crucial at this point. Medical records alone can pile up
to 10 or 20 volumes. A certified legal nurse consultant (LNC)—sort of
a cross between a paralegal and a nurse—can save hours of valuable
time by gathering, organizing and summarizing the records and doing
preliminary research. The consultant can also help identify witnesses
and experts. The downside: LNCs can be costly; their hours add
Know the law and the medicine
Based on the medical records, what are the legal issues? Is it
informed consent? Medical necessity? Caliber of performance?
Failure to diagnose? The answer to those crucial questions triggers
your medical research. Research encompasses studying and learning
Those medical records form the foundation of your case. For plaintiffs,
evaluate the case from a hard defense standpoint. How strong is the
liability? How strong is the causation? Hiring an LNC at this point can
help sift through the facts buried in the records.
Know exactly who you’re dealing with
Research should also include checking the backgrounds of your
clients, opposing parties, witnesses and experts. Never discount
the benefits of checking what opposing parties are posting on social
media. Defense attorney Robert Graziano of Roetzel & Andress in
Florida said he researches licensures. “We want to make sure our
client is telling us the truth and has a good license, that the experts
we consult have active licenses, and that prospective experts have
licenses in good standing.”
You should also know your state’s rules and whether it has any
pre-filing requirements. Be sure all elements of the case are
covered, e.g., standard of care, deviation, causation and damages.
“As a good defense lawyer, I can knock any one of those out,
and I win,” Graziano said.
Bring in the Pros: Working with Expert Witnesses
When it’s time to have the experts take a look at your case, choose
the best. Who is writing the peer-reviewed literature on these topics?
Who’s at the cutting edge of these issues in the relevant medical
community? Research them. Then call them. Make sure you have
their up-to-date curriculum vitae and that all-important fee schedule.
Know what you are in for in terms of fees. And don’t send them any
records to review until they commit to testifying at trial if you think
you will need them. A lot of money is wasted on experts who never
intended to testify in court.
Get the most out of expert depositions in three easy steps:
1. Gather the expert’s professional background. You want to
know if the expert works exclusively for plaintiff or defense.
Does he have a consulting organization? What percentage of his
work is consulting? How much is he being paid? Has he ever been
disqualified by a court?
2. See what the expert has reviewed in your case. Which records
did he examine?
Did he review the medical records “blind,” or did
he have a hint about what he was looking for?
3. Extract the opinions. Thoroughly extract every opinion. Then,
most importantly, you must ask, “Do you believe you’ve done
everything you need to do in order to form and state your
opinions in the case?”
Ferret out the Facts
Written discovery can unearth important details. Were material
changes made to the medical records? Is it the same record that
was provided pre-suit? Comparing records line-by-line often results
in case-changing nuggets.
Additionally, make sure you confirm any handwritten notes
and that you are interpreting abbreviations correctly.
When conducting a plaintiff deposition, distinguish between
what the doctor does routinely and what is the standard of care.
Convince an opposing expert that professional organization’s
journals are authoritative; it lays the foundation for using the
medical literature at trial.
Be prepared to summarize. Condensing hundreds of pages of
medical records into a summary exhibit paints a clear, concise
picture for the jury. You do not want to overwhelm them.
What’s In and What’s Out?
Motions in limine can be used to keep information out, but they can
also tell you what will be admitted. A preliminary ruling on issues that
appear close to the line alerts the court that they will be raised and
allows the court to provide guidance in advance. It’s not unusual for
each party to file in excess of 10 in limine motions in a case. “You need
to know what your strategy is going to entail, and not have a flow chart
that says, ‘Well, if the judge stops me here, then I’ll go to this.’ You’ve got
to know the key evidentiary rulings that you’ll actually encounter before
the jury’s even brought in,” Bass said.
When it comes to whittling down the jury pool, asking yourself
these questions can help:
1. Does the juror understand that the plaintiff has the burden
of proof and that the burden is “more likely than not”?
2. Can you come up with a catchy phrase for the medical issue that
will get people talking and help them understand the science?
3. Has the juror lost a loved one or known anyone who has undergone
a similar procedure or treatment? Despite the sympathy over the
tragedy, can the juror still find for the defense? Or, similarly, if the
doctor was just doing his best, can the juror still find for the plaintiff?
The last word
When it comes to closing arguments, you can artfully summarize
the facts and testimony, but, for a plaintiff attorney, one of the
most common mistakes is failing to ask the jury to award a specific
amount of damages. Don’t worry that the jurors will think you are
greedy. They already do. But if they find in your client’s favor and have
no point of reference, the award could be inadequate. Said Graziano,
“It’s like asking someone to put a value on a car when they have never
For plaintiff counsel, decide whether to commit:
• Can you afford the up-front outlay?
• Are you mentally and physically up for the challenge?
• Will the potential result be worth your while?
Pre-litigation planning—Organizing is key:
• Consider an LNC or powerful technology option
such as MedMal Navigator or both
• Determine the legal issues
• Conduct research due diligence
• Know your terminology
• Do background checks
• Know your state’s rules
• Hire the best
• Research them
• Know their fees
• Make sure they will testify
Discovery and depositions:
• Look for modifications to the medical records
• Confirm handwritten notes
• Explore adherence to the standard of care
• Create summary exhibits
Motions in limine:
• Keep information out
• Get an indication of what will be allowed
• Plaintiffs—always ask for a specific damages figure
Content of this resource guide is based on a nationally Web-streamed seminar—
A Day in the Life of a Small Firm Attorney: Medical Malpractice and Personal
Injury, sponsored by LexisNexis and presented by Brandon Bass of The Law
Offices of John Day in Tennessee and Robert Graziano of Roetzel & Andress
The opinions expressed here are those of the individuals and not necessarily
those of their organizations or clients, and not necessarily those of LexisNexis.
It is not to be considered as legal or tax advice. It is provided for informational