Taking On Medical Malpractice Cases
Written by Julian Sweet, Retired Craig A. Bramley
Medical malpractice cases in Maine can be costly and difficult. They involve complex medical issues, require expensive expert witnesses, are subject to the pre-litigation screening panel system, and are fiercely defended by Maine’s most skilled and experienced defense attorneys. While these obstacles to recovery are all real, they can be overcome with careful analysis at intake and the use of a sophisticated approach to case development and trial presentation. We used such techniques to obtain a verdict of $7.96 million from an Androscoggin County Superior Court jury in the case of Emond v. CMMC, et. al last October. This case is illustrative of the issues that arise in many medical malpractice cases.
The intake process in medical malpractice cases involves multiple steps. A complete and thorough evaluation of a medical malpractice case often requires months to complete, an understanding of the relevant medicine and a substantial budget (for expert review). However, an attorney’s threshold analysis is simple: Are the damages substantial enough to warrant continued investigation? The economic realities of medical malpractice cases make it difficult to pursue cases that involve small injuries. Most cases that involve death, serious injury, or permanent disability warrant evaluation by an attorney with medical malpractice experience.
When Odysseus Emond was born on April 26, 2002, he did not breathe spontaneously and was floppy. He began to suffer seizures within hours of his birth and within months was diagnosed with a severe brain injury that would leave him completely dependent on others for the rest of his life. Less than two days before her labor was induced, Sasha Emond underwent an advanced imaging study and was told that she was carrying a healthy baby. Though neither Sasha nor her family attorney could determine the exact nature of the negligence, the case involved substantial damages and merited further investigation.
To determine whether we could succeed with a medical malpractice claim, we obtained and organized all of the records of mother and child and had them reviewed by the appropriate experts–an obstetrician, obstetrical nurse, and pediatric neurologist. While this process is expensive and time consuming, it should be completed prior to the filing of a medical malpractice notice of claim (unless there are imminent Statute of Limitations deadlines).
The choice and handling of experts is critical. Some physicians interested in participating as experts in malpractice cases possess flaws that can cost the claimant’s attorney thousands of dollars and result in disaster. Some experts are overly enthusiastic about a particular theory of the case or simply willing to tell the retaining attorney what they think he or she wants to hear. Others fail to keep up to date on the relevant medicine or are willing to testify in areas outside of their expertise. When we retain an expert, we make clear that we are seeking a true understanding of the underlying medicine, as well as the liability and damage issues.
The Maine Health Security Act requires claimants in medical malpractice cases to participate in the “mandatory pre-litigation screening panel” process before filing suit in Superior Court. After a discovery period that focuses on the medical care at issue, the case is presented to a panel comprised of a practitioner of the relevant specialty, a lawyer, and a panel chair. The panel decides on the issues of violation of the applicable standard of care, whether the violation caused damage to the claimant and comparative negligence. The extent of damages is not at issue during the panel phase. Regardless of the panel result, a claimant can file a complaint in Superior Court, but a unanimous decree in favor of one party may used by that party at a trial of the matter. Discovery conducted during the panel phase may be used in the Superior Court phase.
The peculiarities of the panel process create significant differences in how medical malpractice cases progress, beyond just the additional time and expense. The two distinct litigation phases including the panel hearing give the parties the opportunity to fully understand their opponent’s case and, with experience and a clear understanding of the medicine, exploit their opponent’s weaknesses. Conversely, a party has the opportunity to replace an expert witness who was ineffective during the panel phase with a different expert, or to designate additional experts, in the Superior Court.
The panel process is not always a reliable predictor of results at trial. While the panelists may bring experience and expertise not found in a jury pool, they also bring biases that are different than those of jurors. In the Emond case, a panel that included a nurse-midwife and a former medical malpractice defense attorney issued a decree finding unanimously against Sasha and Odysseus Emond on both liability and causation.
Technology at Trial
Medical malpractice cases present unique challenges at trial. The underlying medicine can be complex and the most important facts can be buried in a voluminous medical record. Jurors are skeptical of the claims of plaintiffs and sympathetic towards health care providers. On some issues, jurors will hear from two well-trained experts who will express opposing opinions. The evidence and attorney statements in the Emond case were presented in just nine trial days. We accomplished this by focusing on the important medical issues, covering the crucial evidence efficiently, and streamlining our presentation using modern trial-presentation software.
A trial attorney must be prepared to examine and cross-examine witnesses using the medical record, demonstrative exhibits, depositions, hospital procedures, and medical literature, including the witness’s own writings. In the past, this was accomplished exclusively through the use of paper copies. The current state of the art is electronic presentation. In Emond, we scanned and prepared thousands of pages of medical records, deposition and panel hearing transcripts, expert reports, photographs, demonstrative exhibits, and even videos. Any single page could be called up and presented to the jury on a large projection screen within seconds and without scripting the presentation. These capabilities allow for the rapid and seamless presentation of evidence from disparate sources. During both direct and cross-examination, the jury was able to see the documents as they appear in their original form and to comprehend how the evidence fit together. When they received the original exhibits for deliberation, they were looking at pages they had seen many times over the course of the trial. Jurors who have grown up with television can be kept interested and involved when relevant information is presented in both auditory and visual forms simultaneously. The ability to keep the presentation moving quickly over days of trial is essential with jurors who have become accustomed to the fast pace of modern media.
The task of recovering fair compensation for the victims of medical negligence is a difficult one. In order to succeed, the claimant’s attorney must use careful screening and planning, the best expert witnesses, and advance trial presentation techniques.