Ask a Medical Malpractice (Defense) Lawyer

[TheRealJoeFish]

When defending the hospital/doctors/staff, do you team up with the med mal insurance entities?

The short answer is yes.  By way of further explanation, for most of the process, the insurance company does their thing, and the attorneys do their thing, and there's not a ton of interaction between the two.  But if the case gets into settlement discussions, there's a ton of interaction, going back and forth discussing the value of the case and what would be a good settlement and what would be a not-great-but-palatable settlement and what would be the risk/reward of settling for x vs going to trial and such.  An additional factor - one that I don't need to directly worry about, because my firm represents hospitals and nurses primarily rather than individual doctors - is that, even if the attorney and the insurance company agree that settlement is ideal, the doctor gets final say, and can absolutely refuse to settle (this is different from, say, a car crash, in which the insurance company is essentially the boss).  A not-insignificant part of being a trial lawyer, on either side of the case, is explaining to your client why it's a good idea to settle in a given situation.  It's not a zero-sum game; if you settle early on, even if the number is worse than you'd expect a jury to give you, you're saving yourself both the tremendous expenses of trying a medical malpractice case to verdict as well as the uncertainty surrounding the decision of twelve people who are locked in a room and told to stay there until they agree on something.

[brewer]

Have/has any of the hospital or nurse associations ever tried to have any influence/input on a case? For instance, indicating that a particular case if lost or settled may set a negative  or unintended precedent.

[TheRealJoeFish]

Never, to my undying sadness.  That doesn't happen in the USA.  America is anti-wig.  I may try to become a judge someday (at least 20 years down the road), in which case I'll get a robe and a gavel... but still no wig.  I could always buy my own, I suppose - if anyone calls me out on it, I'll kick them out of my courtroom  

Get your own wig, and if the judge queries, just tell him/her/it that "if the President of these here United States is allowed wear a wig in public, then so am I!" Problem solved.

Third question: How often and how hard do you laugh at courtroom drama on the telly? I hear that it can get very bad, and only gets worse from there.

Hmm... It is absolutely true that courtroom dramas get a bunch of stuff wrong.  It's less laughing about, like, "that's hilarious" and more, like, sardonic sad laughter like "I wish it was that easy and exciting and took 4 minutes like in the show instead of 23 hours like in real life."  I've never really been a devotee of courtroom dramas (I would occasionally watch Law and Order when I was younger), but the realities of the profession don't make for good TV viewing. 

(Ah, that reminds me - story time!  I read an article a while ago about lawyer movies (I think it might've been on AboveTheLaw, but I don't remember for sure), and the author talked in part about how renowned film critic Roger Ebert never really liked lawyer movies as much as everyone else; for instance, he gave 2.5 stars out of 4 to both A Few Good Men, generally regarded as a very solid film, and To Kill a Mockingbird, widely considered among the greatest films ever made.  The author realized that this was, essentially, because Ebert was espousing the opinion that you couldn't make a movie that featured both good drama and good lawyering.  For instance, I recall him describing how Ebert said something along the lines of "in A Few Good Men, they spend 20 minutes explaining to each other before the trial how they're going to win, and then they spend 20 minutes during the trial doing exactly what they already told the audience they were going to do - without that first 20 minutes, it would've been unrealistic, but with that first 20 minutes, we already knew what was going to happen!")

I haven't watched it (because I want to watch Breaking Bad first, and I'M GETTING TO THAT, DAMMIT) but a lot of lawyers say Better Call Saul is by far the most realistic lawyer show (in the same way that a lot of doctors and nurses say Scrubs is the most realistic medical show).

BTW, my favorite lawyer show is Harvey Birdman, Attorney at Law.

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Have/has any of the hospital or nurse associations ever tried to have any influence/input on a case? For instance, indicating that a particular case if lost or settled may set a negative  or unintended precedent.

I haven't encountered it.  I think a big part of that is because only a very small percentage of cases are appealed (I haven't been involved in any), and a group or such is only going to get involved with something like that once it gets to the appellate stage and has a chance to set precedent rather than just adjudicating a single claim.  There are state or national supreme court cases in which a group like the American Medical Association will file an amicus curiae brief, I know, but I can't recall specific examples off the top of my head.  (Here's an example of the Supreme Court of Kentucky giving the American Medical Association permission to file a brief in a case about chiropractors' licenses. These sorts of things are more likely to come up in government settings, as opposed to patient-care settings such as the cases I'm involved in.)
 
Part of this is because, more than other areas of law, the legal side of the medical field is heavily regulated and governed by numerous statutes.  For instance, most states have a handful of statutes about negligence cases in general, and then dozens of laws and regulations that solely apply to medical malpractice actions.  As such, a lot of the lobbying/precedent-setting is taking place before the fact, on the legislative side rather than the judicial side.

[brewer]

Thank you for playing.

[Aegon]

Did you go to law school directly following undergrad? I've been thinking about it for quite some time but decided I had enough student debt right now....

[TheRealJoeFish]

Did you go to law school directly following undergrad? I've been thinking about it for quite some time but decided I had enough student debt right now....

I did.  I was not a motivated student, and when I decided I wanted to be a lawyer, I was at least mature enough to realize that, if I took time off in between, I'd never end up going back to school.  That decision was highly specific to my individual situation and makeup, however, and most people do benefit from time off (that is, time working), both personally and career-wise (work experience is often a factor that bumps people over the edge for their choice schools).

I was lucky that I received a lot of (need-based) assistance at undergrad; I was only maybe $20,000 in the hole (a small small amount compared to law school debt).  Law school generally doesn't offer need-based assistance, but merit-based assistance (based primarily on GPA and LSAT scores) is abundant.  I ended up at a very good school but paying the entire cost of my tuition, which was, again, a personally-specific decision.  I needed to make sure I got a job in the geographic area I wanted to be in (near my family), in the kind of work I wanted to do (if I had to, say, do criminal work in the city, as opposed to medmal in the suburbs, I wouldn't last a year), so it was worth it to go to a school that would open up a lot of career options, even if I had to pay more up front for it.