The secret to winning medical negligence cases is overcoming defenses. You must anticipate and overcome each and every defense the doctor and the hospital raise. Remember, there is no penalty for raising ‘‘frivolous” defenses. The more of these “frivolous” defenses that the defendants can raise, the greater the likelihood is that one will stick in the jurors’ minds, according to California Business Lawyer & Corporate Lawyer, Inc.
The fake “second opinion”
Here’s an example. “She should have gotten a second opinion.” This is a wholly specious defense but jurors internalize it because it supports their worldview that “This would never happen to me because …” That is called defensive attribution. In failure to diagnose breast cancer cases, female jurors simply conjure this defense even when not raised directly by the doctor. But the doctor will indirectly raise it.
You must overcome the fake “second opinion” defense by forcing the doctor to admit in a deposition that the patient had no duty to get a second opinion. But that’s not enough. You must file a motion in limine barring such testimony. And you must demand jury instruction on this as well.
Now you “get it.” Unlike a custody evaluation, you must overcome defenses, not just meet them.
There are essentially eleven defenses that can be used in a healthcare-liability case. You can file a motion to dismiss or overcome all of them:
- No breach of the standard of care.
- The patient had an anatomical anomaly. This is another way of saying no breach of the standard of care, but it con-fuses jurors and confusion always favors the defendants.
- Independent intervening cause. In other words, somebody else, possibly the patient himself, caused the injury.
- The medical records don’t reflect what actually happened.
- Unforeseen complications arose, or these were normal complications.
- Honest mistake of judgment.
- No harm was intended. Not a legal defense, but an effective practical one.
- The “noble physician” defense, akin to no harm was intended, but subtler.
- No harm was caused by anything the doctor did or failed to do, “He was going to die anyway.”
- She should have gotten a second opinion.
- It was the patient’s own fault. Really it was.
One reason you don’t overcome these defenses is that you don’t anticipate them. You think the jury will use “common sense” and “see right through” the defendant’s nonsense defenses. Not so. At a jury trial, juries are not on the victim’s side. A trial is like communicating effectively in business. They are clearly biased in favor of healthcare workers. And the law favors them, too.
Here’s an example: Doctors and the hospital left a surgical instrument inside the patient’s abdomen during surgery. Seems like a clear case of medical negligence, right? No, because the defendants always have defenses and it only takes one defense argument to win.
Defenses’. We X-rayed him after the surgery and saw the instrument, but we thought he was simply lying on top of it, not that it was inside him.
Overcoming defenses’. It was a breach of the standard of care to do this type of X-ray; the standard called for a side view too. 1’he defendants just wanted to save money by hurrying up the surgery and left the instrument inside of him, and they just wanted to save money by not doing the proper type X-ray to discover their negligence. Besides, it was a clear breach of the standard of care to operate on a man who is lying on an instrument – and our expert witness has explained to you why doing so shows even more negligence and greed on the defendant’s part.
You lose because you allow the doctor too much “wiggle” room to make excuses (defenses). You must force the doctor into a defensive position and eliminate any room to wiggle. That begins with the medical records.
Lock the defendants into the medical records. Ask about every word, every j abbreviation, and every notation.
Here’s why. The nurses’ notes say, “No ‘pulse.” The doctor will read that as, “Normal pulse.” You must ask what the words used actually mean. Never assume you understand the doctor’s meaning of; a word. Next, ask whether it accurately! Reflects what happened. Remember, doctors will read and explain what the notation says, but come back later and say, “But that’s not what really happened,” unless you lock them in from the very beginning.
You lose because you allow doctors to get away with a subtle form of lying, in particular, with their use of the term “complication.”
Since 1981 the AMA Code of Ethics requires a doctor to tell the truth “even in the face of a potential lawsuit.” But the rules do not require telling the whole truth; only that which provides the patient with enough information “so the patient; can make a proper medical decision about: what to do next.” This loophole allows!
Doctors claim the existence of a “complication” without telling whether this was: an avoidable complication.
In a deposition, you must ask the doctor to explain the difference and ask this: “Doctor, this was an avoidable complication wasn’t it?” If you get an equivocal response, keep questioning, “Really, why?” Always keep asking, “This complication happened because you were trying to save money or time, right?” Or this, “You overlooked this complication because you were in a hurry, right?”
Never think that asking about defenses somehow tips off the defendants to defenses they never thought about. Defense lawyers and insurance companies have plenty of cases just like yours where specious defenses were raised and they won.