Medical Negligence Strategies: Overcoming Defense

Defendants in medical malpractice litigations will employ a number of strategies to try to ensure that our clients are denied a just recovery.

These strategies include the following:

• Making up the medicine
• Hiring experts that are less than honest
• Attempting to overly narrow the issues
• Delaying and Playing into Jury bias

Each of these strategies can be overcome.

I. Defendants Making Up Medicine

Some defendants will make up medicine in an effort to defend their case. Unfortunately, they are often aided by their professional associations and dishonest literature.

Solution:
We make every effort to understand the medical literature in your case before the first deposition is taken. In that way, we can often get helpful admissions from the doctors and nurses that advance our clients’ cases.

II. Experts That Are Less Than Honest

Oftentimes defendants hire experts that are less than honest.

Solution:
We find and develop information about the defense experts from a variety of sources. These efforts include getting pleadings and other materials from lawsuits in which the expert was a party, using the internet or even an investigator. We feel that depositions of parties and depositions of experts are not simply times to find out what the defendants and their experts are going to say. These are times to attempt to materially advance your case. The only way that you can do this is by being prepared.

III. Overly Narrow the Issues

Typically defendants will try to overly narrow the issues. They want to claim that the issue in the case is whether the doctor was negligent or the nurse was negligent. In most cases, not only are the doctors and nurses negligent, but also there were systemic failures throughout the organization that led to your client’s injury or death.

Solution:
We understand that 400,000 people die every year in hospitals as a result of preventable medical mistakes. That is roughly equivalent to two jumbo jets full of passengers colliding in midair each day of the year. In the last 4 years, approximately 20% more people have died in hospitals from preventable medical errors than the total of all US battle deaths from all wars in the history of the United States. These are typically the result of a system failure in the hospital; not just the negligence of one doctor or nurse.

Solution:
Before filing suit, we collect the literature, with respect to the medical and institutional issues involved in the case. In addition, we collect the standards applicable to all issues.

For example, we often consult:
 • jointcommission.org (The Joint Commission) 
 • ismp.org (Institute for Safe Medical Practices) 
 • fda.gov (U.S. Food and Drug Administration) 
 • qualityforum.gov (National Quality Forum)  
 • ihi.org (Institute for Healthcare Improvement)

IV. Delay – Justice Delayed is Justice Denied & Play to Jury Bias

Defendant will typically invoke ever delay strategy they can. They will object to interrogations, they will object to requests for production. They will not respond to requests for depositions.

Solution:
To counter these delay strategies, we prepare in advance. Often times we get the hospital’s policies and procedures prior to filing suit. We tailor the discovery to your case and carefully draft it so that it is not subject to easy objections. The discovery is often served with the petition, together with notices for depositions and a motion for a scheduling or docket control order.

The defendants will often try to portray the institution as being there only to provide help and take care of people. Whether the hospital is a non-profit or a for-profit institution, we feel in many cases their care is all about the money. Unfortunately, the motivation for the institutional failures that had to occur at many levels in order to allow your client to be injured or killed is money. We keep that in mind as we aggressively pursue our client’s rights.