Ten Strategies for Success in Medical Malpractice

Introduction

Medical malpractice is a very complex area of law. These cases can be interesting and intellectually stimulating but also emotionally draining from prolonged contact with plaintiffs and their issues. It is easy to run up considerable costs, not to mention the sheer amount of time and effort required and yet statistics from the defence unions indicate four out of every five potential cases are successfully defended.

These are not good odds and this article looks at the lessons learnt to navigate the medical malpractice minefield in a faster, better, more efficient manner, based on personal experiences as a medical expert from over 3000 cases?

On reviewing these, ten recurrent themes come to light, due attention to which heralds the success or otherwise of a particular case. These may be conveniently represented by the word SCREENING, both as one of the themes and as an acronym for the other nine areas.

Screening

Because of the historically low success rates, it is of prime importance from the outset to carefully assess any complaint and determine whether or not, even on face value, the essential triad of duty, breach and consequential, or but for, damage is likely to be present, as most cases fail on the first hurdle of causation. Subsequence is not consequence. It is all too easy to get sucked into the client’s story where the potential for a case may at first sight appear obvious to a lay audience.

Doctors have a duty of candour which can mean they may apologise if an outcome is not as expected even though there has been no breach of their duty of care. Sometimes, this has been taken by both clients and lawyers as an admission of liability which is not necessarily the case, so it is important for the unwary not to make assumptions. Any drug or procedure has an element of risk and a poor outcome may be an unfortunate complication of a disease, injury or modality of treatment. With any medical management, nothing can be guaranteed. It is a matter of weighing up potential benefits against any possible downside, which is the central tenet in the doctrine of informed consent.

In many cases, a client’s concerns are more in the nature of a complaint about behavioural issues, including attitudes of staff, lack of communication or perceived delays in the management of their case. These are best dealt within the normal complaints’ procedure for the practice or institution involved and usually do not rise to the legal definition of ‘medical negligence’. Direct enquiries would be expected to result in a written response in a matter of months. This can clarify issues and, on some occasions, complaints may result in the instigation of a Serious Incident Review which has the potential to identify areas where medical care has been deemed to be sub-standard and could be subject to legal challenge. However, if lawyers are involved on a client’s behalf before the complaints’ procedure or Serious Incident Review has been completed, it is likely any written response would not be released as the matter would be regarded as sub-judice.

The key to mitigating against making an emotional decision to pursue a case is to obtain a preliminary screening report by an experienced medical expert in order to establish who, in all the circumstances, might have a duty of care, what standard should be applied and whether or not any consequence was likely to have occurred directly due to the suggested breach. This initial opinion does not go into great depth on the specifics of the case and can usually be based on a detailed statement from the client, but may require perusal of some specific notes and records along with the responses to any complaint. Without clear evidence of the essential triad, putting together a case becomes more of a phishing expedition which can be very costly in terms of time, effort and also financial layout which may not be recoverable.

?An early, general screening overview therefore helps to contain costs as it can be provided for a fraction of the fees which would be required for a full liability and causation plus a condition and prognosis report. Therefore, obtaining a screening report as a general overview is a vital first step in the initiation of a claim. The word ‘SCREENING’ is also an excellent acronym for the other nine areas where difficulty for lawyers can and do arise.

Statute

The Statute of Limitations sets a maximum time after the subject incident during which legal proceedings may be initiated. In general terms this is to? ? prevent any defendant going through unnecessary litigation particularly when, after a considerable amount of time has elapsed, recollection of witnesses may fade and it can be difficult to obtain documentary evidence. It is therefore important cases are commenced well within the time bar or, if time is running out, a protective writ issued with the potential for being re-issued in one year.?

The Statute does not automatically apply and courts have discretionary powers to grant permission to proceed if there is a compelling reason and the basis for the case appears sound. Time limits are normally based on the date at which the cause of action accrued, modified by circumstances such as the time when the client is judged to have had a reasonable knowledge of what happened, particularly in medical negligence cases as complications may have taken a considerable time to manifest. When children are involved, this period does not begin until the child has reached the age of emancipation and may also be delayed for those classified as having a mental disability.?

The presence of the Statute serves as a warning to lawyers to avoid unnecessary delays in moving forward their investigation or they may unintentionally run out of time and find themselves at the receiving end of a claim in professional negligence.?

This is another benefit from swift, initial screening, allowing early determination as to whether or not matters are likely? to proceed. If a case appears to be weak and a firm declines to take it on after due consideration, clients can be informed at an early stage so they are free to seek alternative medical or legal opinion before they run out of time.

Counsel?

Barristers taking on medical negligence cases are usually highly experienced and extremely busy. It is important ensure when? engaging counsel, they have the time to discuss, guide and lead through the evidence and will keep in regular contact about the case.

The provision of a screening report allows a more informed discussion of the medico-legal aspects and, in particular, the raising of specific questions which experienced counsel may wish to be included in the briefing for the more detailed expert reports. Regular contact allows counsel to maintain an ongoing overview as the various reports are received so they can provide direction and ensure the case stays on track, particularly giving advice on the handling of any new issues which may arise.?

In complex cases, where there are likely to be multiple medical reports on both sides of an argument, it is appropriate to obtain a secondary review when all reports have been received whereby an experienced expert can look at all the available evidence and then work in continuity with counsel to consider the implications of the information in terms of potential strengths and weaknesses before court proceedings. It is a grave error to leave this until the day of the hearing.

Reports

The initial screening report gives an early steer on liability and causation, determining the direction of a case without spending a lot of money on multiple specialist reports. It should give advice of which specialists should be involved and in what order such reports should be obtained. From the outset, it is important to determine exactly who has been regarded as having a duty of care towards the claimant. Normally this is easy to determine , however it may not be so obvious. At first sight the case may appear to involve a particular consultant but closer examination may reveal it is actually in the remit of other professionals from different medical specialities, such as General Practice or Accident and Emergency, or indeed para-medical specialities including nursing or physiotherapy. With private patients it is necessary to name? specific personnel whereas in the public scenario indemnity is provided by the Trust or institution. Therefore it is necessary to be clear about the duty of care and whether it is vicarious. As a rule of thumb, it is better to co-join as many as possible as it is easier to remove than to add a potential defendant at a later stage.?

On occasions, it is necessary to reverse the sequence and obtain a report detailing likely consequential damage which may have arisen as, if none can be determined, a report on liability and causation is likely to be superfluous.???????

Expert

Eminence is not the same as expertise and just because someone is well-known in their profession or has appeared in other cases, does not mean they are appropriate for the specific subject under discussion. Further, they may not have expertise in writing medico-legal reports, being robust but reasonable in meetings to negotiate with other experts or giving evidence in court.

?Experts must be chosen wisely, clearly understand their primary duty is to the court no matter who instructs them and be a recognised expert in the specific subject matter of the case. They must be able to reason logically, both orally and on paper, setting out their opinion against relevant facts and tests without using hyperbole, in a way which lay persons in general, and the court in particular, can understand and interpret.?

Experts must acknowledge the standard required is reasonableness not perfection and be prepared to alter their stated opinion if new evidence, which they have not previously had a chance to consider, is presented during proceedings.

Finally, it is important to ensure the expert can and does produce reports within reasonable timescales. It is essential for lawyers to maintain easy two-way communication with their chosen expert so that any queries can be expeditiously dealt with and further evidence required to complete the report are obtained at the earliest opportunity.?

Ethics

It is an expert’s duty to remain independent no matter who engages them. They need to be coldly objective and demonstrate no conflict of interests or bias on behalf of the plaintiff, the defence or a specific line of medical therapy.?

It is quite reasonable to advocate a particular view as to how a particular complaint should be managed. However, it must also be accepted the fact there is liable to be a reasonably held range of opinion which experts should outline and, if necessary, indicate by logical argument why their opinion should be given preference.

From the standpoint of a lawyer, it is not acceptable to ask an expert to “tweak’ a report in order to place their particular client in a better light. While some attempt to justify this by stating they are only trying to do their best for the client, they do not serve either the justice system or their profession well.?

?An expert who agrees to change any element of a report under such circumstances is compromised, not just for the case in hand but for any other and is open to being severely criticised in court. It is not unknown for both experts and lawyers, found to have breached this code of conduct, to have their professional registration to practice removed by their governing body. Such censure can have considerable implications for their personal, professional and financial well-being. If an expert does change their opinion, they must be fully open and transparent, stating logically the reasons why.

On occasion, there has been a tendency to pursue a case which has no chance of success up to the door of the court in order to get a settlement of some sort, at least to cover expenses. Recent judgements have made it clear courts? regard such behaviour as a breach of ethical duty.

Notes and records

Guided by the initial screening and comments of counsel, all appropriate notes and records need to be expeditiously sourced, well organised chronologically, indexed and paginated for ease of both study and reference especially as, in some cases, many thousands of pages may be involved.? As well as contemporaneous medical notes, other records may be valuable, for instance letters to clients from an institution following a complaint or other internal documents such as a report resulting from a serious incident review. External documents may also be available following a post-mortem or inquest and the client themselves may have notes in a diary or even photographs on their phone.

Medical experts should be wary if they find notes have been altered in any way or redacted, especially if this has been carried out by the legal team either for the defence or the plaintiff. Unless the redaction relates to the names of third parties, it is not best policy to edit notes in any way before forwarding them for an expert opinion.

Insurance

Medico-legal cases can be very expensive and costs need to be controlled. There is no such thing as a water-tight case and loss can result in a heavy financial burden. Any law firm should be clear how they are going to be compensated in the event a case does not proceed as expected.?

Some form of insurance is therefore a necessity. Clients may self-insure or have a legal policy in place at least to cover initial advices. Experience has shown the wisdom of ensuring they participate by? having some financial “skin in the game”! It may also be possible to obtain Legal Aid or After the Event (ATE) Insurance, if it is clear from the initial screening report and the opinion of counsel the case has a high likelihood of success.?

Using a blunderbuss approach, ordering multiple expert reports at an early stage and even obtaining second reports when one expert report does not appear to back the client’s case, is a recipe for financial disaster. Once again, a process or system for conducting medico-legal cases is vital to success, remembering that a “system” is there to Save, Yourself, Stress, Time, Energy, and Money.

No medical knowledge/expertise

The lawyers most likely to get in trouble with the process are those who do not undertake these proceedings on a regular basis. There are many nuances from both a medical and legal point of view which can make cases which look similar produce markedly different outcomes. An important understanding is that reasonableness is the standard and not perfection. Further, no medical treatment can be guaranteed of success, It is understandable, when discussing a treatment with the patient, there will be a tendency for doctors to be optimistic which courts have accepted as reasonable ‘therapeutic reassurance’. Downside risks must also be explained as known complications do arise during the process of gaining informed consent.

However, it is also true that, just because a patient has been told about the potential risks associated with a particular therapy or procedure, a signed consent does not mean that when such difficulties arise they could not be considered due to a negligent act. It very much depends on context and circumstances in the individual case and again an independent medical legal expert should be in the best position to determine whether a poor outcome would reasonably be regarded as due to a known complication in all the circumstances or represent a negligent breach of the duty of care.

In relation to informed consent, one of the tests applied by courts if there has been a perceived omission during the consent process, is whether or not this would have made any material difference to the decision of the patient. The question is if the patient had been so informed would they have come to a different decision or, on the balance of probabilities, would they have proceeded anyway?

In circumstances where experts differ in the interpretation of an objective finding, it is for the court to assess all the evidence and make a determination. Sometimes this is difficult for lawyers to understand and particularly if they lack medical knowledge and experience in such cases. Especially at an early stage in their career, it is good practice to have coaches and mentors both within and without the firm, or even the profession. By reflection on the more challenging cases, lawyers can continue to get the learning? from them which in turn grows their expertise in what is a niche area and helps to professionalise practice.?

Guiding client expectation

In some cases, particularly when the consequences have been devastating for the client, even the most experienced lawyers may become emotionally involved. The rule is empathy, not sympathy and to remain objective throughout so clear, unencumbered, professional advice may be given to the client.

?It is important to get to know the client in order to understand how to influence them. At an early stage it is necessary to have an in-depth conversation in order to ascertain exactly what outcome a client expects from the case. Some want to punish, others wish for monetary compensation but on many occasions the client is primarily looking for a detailed, understandable explanation as to what happened. It is therefore important to listen to understand where the client is coming from, to ask questions and summarise what is heard in order to gain clarity. Anger is a common emotion which is best handled through empathy, understanding and a certainty they are being listened to, rather than any logical argument.?

Managing a client’s expectations is one of the most important functions of a lawyer and vital if the client is to feel content with the outcome, however long the process takes. There must be clarity on deliverables; what sort of timeframes are to be expected, who will have to be consulted, what the costings will be and who will be paying for it. It is important to be totally authentic and provide a personal service, explaining the system within the office, how clients can get through and how often they will be updated. Unfortunately, on many occasions the expert may be the only person who actually has face-to-face contact with the client, especially during the recent pandemic, which can lead to misunderstandings. Clients need to know the expert is there to give a legal and not a medical opinion and is not acting as a GP or specialist for them.?

Whatever is agreed, it should be written down in a letter of agreement, not? relying on oral recall. They should be clear about the steps, for instance that? matters will be discussed with them once in receipt of the preliminary screening report and advice from Counsel. With everything, it is about trust which includes “no” when necessary. At the first sign of any difficulties, communicate quickly.?

Conclusion

These have been the most frequent challenges in the legal process noted in over three decades of dealing with personal injury and medical malpractice cases. The basis of a sound case is the demonstration of strong liability and significant harm coupled with a good, credible plaintiff. Legal representatives must have a deep understanding of the many complexities involved and be aware of potential pitfalls. Securing an early screening and proficient advices from an appropriate medical expert goes a long way to? mitigating any possible financial and reputational risks.

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