Dialogues In Healthcare · pursuing claims of medical malpractice regardless of whether such claims had merit. The defense theory was essentially that if death results from medical

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Dialogues In HealthcareDialogues In Healthcare

STRATEGIES FOR EFFECTIVE COMMUNICATION

Volume 3, Number 11 November 2009

Miscommunication by Trial Counsel

For most healthcare risk management practitioners, the focus is on improving care provider communication. It is understandable too, especially considering the amount of data that suggests that a breakdown in communication is a cause for or contributing factor to professional liability claims. Sometimes, however, it is not the care provider who is the poor communicator. Indeed, as a West Virginia case1 suggests, sometimes the person in need of communication improvement is the trial attorney. Some may smirk at this suggestion. However, many risk management practitioners have witnessed trial counsel use questionable or unacceptable communication tactics. Is there anything that can be done to address such an issue? If so, what is the role of the risk management professional? The claims manager? The West Virginia Case. As a child, the patient, J.L. contracted rheumatic fever that caused her to experience heart valve disease. In 1980, surgery was performed to repair a defect in the mitral valve.2 In 1999, J.S. underwent a cardiac catheterization. It revealed severe mitral valve stenosis. Now 61 years-old, she underwent her second open heart procedure to address her mitral valve problem. The operation was to replace the mitral valve.3

A Publication of The Rozovsky Group, Inc./RMS

Fay A. Rozovsky, JD, MPH Editor

POWERED BY ONEBEACON PROFESSIONAL INSURANCE


The defendant, Dr. E.S., encountered massive bleeding when he separated the sternum. The cause was a tear in the aorta, an event that the court described as a common complication.4 The patient was placed on a heart bypass machine while repairs were made to the aorta. However, the patient sustained irreversible brain damage due to oxygen deprivation. She was left in a semi-comatose state until her death in January 2003.5 It was the administratrix of the patient’s estate that brought a lawsuit for negligence against Dr. E.S. and his employer, a caridiothoracic group. This was a case tried before a jury.6 The plaintiff’s expert witness testified that Dr. E.S. should have performed a preoperative CT scan of the patient’s chest. If he had done so, the expert suggested that Dr. E.S. would have known that there was insufficient space between the sternum and the aorta to perform the cardiac procedure without complications. He could have then placed the patient on the heart bypass machine before opening the sternum. Alternatively, he could have exposed the femoral artery, creating a quick access point in the event of the aortic complication that arose upon opening the sternum.7 For his part, Dr. E.S. had an expert witness at trial that took quite the opposite position. Suggesting that Dr. E.S. had met the applicable standard of care, he noted that a preoperative chest x-ray showed that there was sufficient space between the aorta and the sternum to permit the operation. He was of the opinion that the aortic tear occurred when Dr. E.S. disrupted scar tissue that had formed following the patient’s earlier open-heart procedure, a problem that would not be apparent on either an x-ray or CT scan. Further, he believed that Dr. E.S. had met the standard of care when he found the aortic tear.8 Towards the end of his closing argument the defense counsel used a PowerPoint presentation. Projected on the screen was a three-set frame from a “Wizard of Id” cartoon that had been published in the local newspaper the previous day:

“in the first, a woman is seated at the table of a fortune teller whose hands are placed on a crystal ball while saying, ‘I’ve made contact with your recently departed Uncle Ned’; in the second frame, the woman questions the fortune teller saying ‘You have? What did he say?’; and in the final frame, the fortune teller responds “He wants you to sue the doctor.’9



As this slide was being viewed by the jury, the defense counsel remarked:

“I think that this a reflection of society today where-“10 At this point, the court sustained an objection made by plaintiff’s counsel. The defense attorney persisted suggesting that Dr. E.S. would have been blamed had a complication occurred regardless of what procedure he had elected to use on the patient:

“If Dr. [E.S.] had done what [the plaintiff’s expert and [plaintiffs’ counsel] claim he should have done in this case, and cannulated her in advance, and there had been one of these complications, and we would have had a bad outcome-they would have been in here criticizing him for doing an unnecessary procedure, and said, “Well, there’s no risk on the CT. There’s no risk on the x-ray.”11

Overruling an objection by plaintiff’s counsel, the court permitted the defense attorney to proceed:

“So if any complication occurs, no matter which way Dr. [E.S.] goes, he’s going to be criticized for doing the wrong thing, because in hindsight, you can take apart anything and criticize. The doctor is always going to be criticized and held accountable because we’re going to require that doctor to be infallible. You can take a bad result and turn it into a malpractice case every time.”12

The defense counsel continued his closing argument while using yet another PowerPoint slide that was entitled, “Dr. [E.S.] Can’t Win.” The content of the slide stated:

• “No Matter What Course He Takes, There Are Going to Be Potential Life Threatening Complications That Can Not Be Avoided

• If One of Those Complications Occur, He is Going to be Criticized

For Not Taking the Other Course

• [Plaintiff’s Counsel] and his Expert [Dr. H.], Will Take a Bad Result and Turn It Into Malpractice Every Time.”13

As the jury was deliberating, the plaintiff’s counsel moved for a mistrial based on the use of the cartoon and the remarks made by defense counsel in his closing argument. Although the trial court agreed that the cartoon went beyond the “boundaries and limitations of proper



argument,” it declined to declare a mistrial. It also denied a plaintiff’s motion for sanctions.14 The jury returned a verdict favorable to the defense. On appeal, the Supreme Court of Appeals of West Virginia reversed and remanded the case. In doing so, the court determined in a per curiam ruling that the trial court had abused its discretion in denying a grant of a new trial. The West Virginia appellate court minced no words in its rebuke of what transpired at the trial level. As the court stated:

“In addition to attacking the character and integrity of plaintiff’s counsel and her expert medical witness, defense counsel implied that a plaintiff’s verdict could end Dr. [E.S.’s] ability to practice medicine locally and reduce the availability of quality medical care in the community in which the jury resided. For the same reasons that derogatory comments and personal attacks on counsel and witnesses are improper, this type of appeal to the jury is similarly not permitted.”15

The high court was also critical of the PowerPoint display:

“…defense counsel personalized the effects of his rhetoric through the use of demonstrative aids to argue that both [plaintiff’s counsel] and [plaintiff’s medical expert witness] were intent on pursuing claims of medical malpractice regardless of whether such claims had merit. The defense theory was essentially that if death results from medical treatment in a high-risk scenario, a malpractice claim was inevitable if [plaintiff’s counsel] and [plaintiffs medical expert witness] were involved in the case. This type of character derogation is clearly outside the bounds of permissible argument in summation.”16

The appellate court said the cartoon amounted to a “clear jab” at society’s willingness to litigate against medical practitioners. As such, it was difficult for the court to see the use of the cartoon as

“anything other than an attempt to by defense counsel to gain sympathy for Dr. E.S. while prejudicing the jury against the plaintiff.”17

The appellate court took note of an argument made by the defense involving juror instructions that could help “cure” any prejudice created by the closing remarks at trial. In this case, the court indicated that it



was doubtful that a curative instruction would have “purged” from the jury the prejudicial effects of the improper closing argument.18 The court reasoned that the case had to be reversed and remanded for a new trial in view of the cumulative prejudicial effects on the jury from the closing arguments to the “wrongful appeal to the local passions and concerns of the jurors.”19 Observations on the West Virginia Case. The facts presented in the West Virginia case reflect an egregious level of behavior. There is a difference between ethical, respectful advocacy for a client and overreaching that offends the sensibilities of the court. Trial lawyers are considered officers of the court. They are bound by the principles of legal ethics and professional conduct. As advocates, trial lawyers are school in an array of tactics designed to make principled, cogent arguments on behalf of their clients. While some may get carried away in their advocacy, opposing counsel is usually ready with a rebuke in the form of an objection. It is the judge who must decide when a closing argument exceeds acceptable bounds. Mocking, sarcasm, histrionics, and disparaging remarks deter effective advocacy. This point was noted by the high court in West Virginia. Further, the court highlighted what it termed “demonstrative aids.” The healthcare field has long recognized the value and impact of slides and visual displays as teaching tools. Combined with a good method of verbal communication, the “aids” help to reinforce the message of the speaker. Trial attorneys are known to use “demonstrative aids” to help illustrate medical procedures, complex events, and other aspects of a case. Sometimes these “aids” are used in closing arguments to reinforce key points. In essence, they want to educate the jurors. Such an approach is quite useful and acceptable. However, as seen in the West Virginia case, these “aids” can go well beyond illustrative material to prejudice a jury. A reasonable balance is what is needed in closing argument and in the use of demonstrative aids. Further, those responsible for selection of trial counsel should consider criteria for selecting such individuals. Reputation as a “fighter” or an “aggressive, tenacious advocate” may not reveal the true nature of the trial attorney. Limits can be set and communicated so that expectations are met by the healthcare organization or medical practitioner. In the end, no defendant wants to



be put through the trauma of a new trial due to the actions of defense counsel. Strategies for Avoiding Trial Counsel Miscommunication. There are a number of practical strategies to consider in the claims management communication process with trial counsel. These start with setting reasonable expectations, good counsel selection criteria and continue through careful screening of prospective defense attorneys. Additionally, maintaining good communication is important regarding community level perspectives that may impact would-be juror perceptions. Some communication strategies to consider include the following:

1. Develop Clear Performance Expectations for Defense Counsel.

Recognize that with few exceptions, most trial attorneys stay well within the bounds of good trial tactics. Do avoid surprises: consider setting clear expectations about pre-trial and courtroom communication strategies.

2. Screen Prospective Defense Counsel.

Consider developing a defense counsel screening tool that contemplates among other items communication strategies, courtroom tactics, and the use of assistive tools such as three-dimensional displays, colorful diagrams, and PowerPoint presentations. Recognize that the use of assistive tools is quite acceptable and often useful in complex cases. Ask prospective candidates to provide examples of assistive tools (with identifiers removed) from previous cases.

3. Ask for and Communicate with References. Request that prospective counsel provide a list of references that may be contacted about important aspects of trial counsel communication. Use a standardized approach that captures information about timeliness of filings, participation in claims management discussions, cooperation in pre-trial activities, and court room demeanor. [See sample tool]. Let prospective candidates know what will be asked of references.

4. Ask About Disciplinary Actions. Request information about bar disciplinary actions and sanctions imposed by trial counsel. If there is evidence of a pattern of bar discipline or judicial sanctions ask for an explanation from the candidate for defense counsel.



5. Develop a Clear Claims Communication Approach with Counsel. Avoid assumptions and misunderstandings with defense counsel. Take the initiative to delineate a practical plan for pre-trial and trial claims management communication. Identify who will be in the communication loop, including associates, paralegals and assistants from the defense counsel’s office and risk management and claims management personnel from the healthcare organization. Recognize too, that such communication will often involve claims professionals from insurance carriers and/or captive insurance entities.

6. Delineate the Role of the Risk Manager in Facilitating Claims Management. Define the scope of responsibilities of the risk manager or claims manager at the healthcare organization in the claims management process. Decide what pre-trial activities and meetings the individual should attend, what degree of responsibility the individual will have for gathering information or helping with completion of interrogatory responses, and whether or not the risk manager or claims manager will attend the trial. Take into consideration the communication responsibilities with defense counsel.

7. Provide Feedback to Defense Counsel.

Communicate observations on good practices and opportunities for improvement in the claims management relationship between the healthcare organization and defense counsel. Ask for similar feedback from defense counsel with a view to use the information to fine-tune communication in the management of future claims.

Conclusion. An over-zealous defense counsel in one medical malpractice claim should not paint a negative picture of all trial counsel. The West Virginia case reflects a strident example that was unacceptable to the appellate court. Trial advocacy takes skill, effective communication and quick thinking on the part of defense counsel. It requires too, a willingness to learn from healthcare facility claims and risk management personnel very practical information. This includes learning the mood in the community from which jurors will be selected and the community history of previous situations. Adverse publicity is another consideration.



Although the courts follow civil rules of procedure and of evidence, there may also be local customs in the courtroom. Civility among peers and demeanor towards judges and juries need to be contemplated as well. Often trial counsel is assigned by an insurance carrier. Sometimes, as part of the negotiation leading to insurance coverage, a healthcare organization can reserve the right to select or approve trial counsel. However, as the determination is made, healthcare organizations need to be comfortable that the trial attorney has the requisite skill and deportment to represent its interests. It is not an insignificant matter that the actions and behaviors of trial counsel in a courtroom can reflect adversely on the healthcare facility. As such, there is a good basis to take an active role in the defense counsel selection process and to forge a strong communication pathway with key stakeholders in the claims management process.

DDIALOGUES IN IALOGUES IN HHEALTHCAREEALTHCARE is a publication of The Rozovsky Group, Inc./RMS. This publication is

not intended to be and should not be used as a substitute for specific legal advice. Readers should obtain specific legal advice in managing discussions with patients and patient families. Contact Information: The Rozovsky Group, Inc./RMS, 272 Duncaster Road, Bloomfield, CT 06002. Tel: (860) 242-1302.



Sample Tool

Selection Criteria for Trial Counsel

This sample tool assumes that a healthcare organization selects defense counsel for health professional liability (HPL) claims. It is premised on an open competition to which attorneys or law firms have decided to respond to a request for proposal for litigation defense. Overview of Selection Process: Thank you for your submission in response to our RFP for litigation defense counsel. As our RFP proposal statement indicated, we are seeking a trial attorney or trial defense firm that is best suited to our needs. We believe in open and responsive communication, providing one another with important information and a shared philosophy in the settlement and defense of claims.

In order to make our selection we would like you to supply answers to the questions below. Also, we will want a list of six references with whom we can discuss their perception of timeliness of filings, participation in claims management discussions, cooperation in pre-trial activities, and courtroom demeanor. By signing the appended release, you authorize ______ to communicate with the enumerated references. Please answer the questions as accurately as possible. If we think that a response requires further explanation, we shall contact you by mail. 1. How many HPL claims have you defended in the last five years? 2. What percentage of these cases resulted in a defense verdict? 3. How many cases involved complex risk situations? 4. How many cases involved high-risk clinical tests or treatment? 5. Please describe in the cases that you defended that resulted in a

plaintiff’s verdict what was the basis for claim? 6. Have all you cases involved jury verdicts? 7. How many times has an appellate court overturned a defense verdict in

cases in which you served as defense counsel? 8. In the cases described as overturned on appeal, what was the basis for

the court determination? 9. Have you had formal training in any type of alternate dispute

resolution? If so, in a separate typewritten document please described your training and experience in alternate dispute resolution.



10. Have you ever been disbarred or sanctioned by a state bar? If so, in a separate typewritten document explain the circumstances, findings and bar action.

11. Have you ever had your ability to practice law suspended? If so, in a separate typewritten document explain the circumstances, findings and bar action.

12. Have you even been sanctioned by a trial court judge for courtroom conduct? If so, in a separate typewritten document explain the circumstances, findings and bar action.

13. Will you be willing every two months to provide to us a one-page summary of current developments in open claims?

14. Will you agree to work cooperatively on claims management systems, processes and cases with our healthcare organization?

15. Will you agree to work cooperatively on claims management systems, processes and cases with our (TPA) (Captive Insurance Claims Management Manager)?

Release to Conduct References

(This would be developed by general counsel.)

On behalf of __________________ (law firm), I hereby authorize ______________________(name of healthcare organization) to complete reference checks by communicating with the individuals listed here. In doing so, I request that these individual provide frank and candid answers to questions posed by ________________________ (name of healthcare organization) so that these responses may be used to complete the healthcare organization trial counsel selection process. Authorized Individual from Law Firm Date:_______ Healthcare Organization Date:____________



References 1 M.J. v. E.S., 2009 WL 3805643 (W.Va. 2009). 2 Id. 3 Id. 4 Id. 5 Id. 6 Id. 7 Id. 8 Id. 9 Id. 10 Id. 11 Id. 12 Id. 13 Id. 14 Id. 15 Id. 16 Id. 17 Id. 18 Id. 19 Id. It should be noted that the court addressed a cross-appeal issue involving testimony that had not been permitted in the earlier trial

Documents

Dialogues In Healthcare · pursuing claims of medical malpractice regardless of whether such claims had merit. The defense theory was essentially that if death results from medical