The Seven Best Practices Of Highly Effective Medical Liability Defense Attorneys by Robert Blasio, J.D. Western Litigation, Inc.

A. Introduction

Our company manages medical liability litigation throughout the United States and Puerto Rico. We work in concert with thousands of attorneys who defend our clients. I am, therefore, frequently called and asked what a law firm should do to gain access to our approved attorney list or to expand the relationship that it already has with our company and its clients.

In light of our company's role in the medical legal community, I initially thought it would be easy for me to prepare an article which would serve as the practitioner's road map to client satisfaction. Yet, the task has proven far more difficult to accomplish than I initially believed. Preparing a definitive "to do list" for client satisfaction is problematical because any evaluation of defense counsel in the medical liability arena is subjective. For example, should the quality of the defense counsel be gauged solely by the number of defense verdicts obtained? If so, defense counsel would be evaluated on only a small percentage of the cases assigned, since it is well established that relatively few cases are ultimately tried. Alternatively, should we evaluate defense counsel by the settlement amounts on the cases assigned? Once again, this approach is subject to attack because the settlement amount of a case often reflects the decision making of individuals other than defense counsel.

Confronted with the subjective nature of the task at hand, I have elected to borrow a page from a renowned author, Stephen R. Covey, and his book, The Seven Habits of Highly Effective People. In this article, I have detailed what I perceive as "The Seven Best Practices of Highly Effective Medical Liability Defense Attorneys". The seven best practices discussed in this article are really nothing more than an in-depth discussion of the areas where the better defense attorneys shine, and the lesser defense attorneys falter. Although each best practice contains its own subjective elements, I submit that an adherence to the basic principles contained in each best practice will go a long way towards enabling medical liability defense attorneys to realize the stated goal of client satisfaction.

B. The Seven Best Practices Of Highly Effective Medical Liability Defense Attorneys

1. Learn The Litigation Philosophy Of Your Principal

A competent defense attorney would never take a medical liability case to trial without knowing the healthcare provider’s thought process at the time of the treatment at issue. A defense attorney must be able to assist a healthcare provider with conveying his or her mental approach to the patient if there is to be a successful defense.

Despite the obvious necessity of understanding the healthcare provider’s mental approach to treatment, defense attorneys frequently accept cases without knowing the litigation philosophy of the assigning insurer or self-insured entity. More often than not, defense attorneys assume, incorrectly, that all principals want their cases handled in the same fashion. As a practicing defense attorney, I was frequently guilty of making this erroneous assumption. For years, I believed that professional liability insurers wanted their defense attorneys to delay cases for as long as possible. Only years later, after I had left private practice and entered the insurance industry, did I learn that virtually all for-profit professional liability insurers want their defense attorneys to resolve cases as quickly as possible, thereby allowing those insurers to take down reserves and increase capital and surplus for the writing of new business.

The first best practice of highly effective medical liability defense attorneys is that they take the time to gain an understanding and appreciation of the litigation philosophy of their principal, whether that principal is an insurer or self-insured entity. In today’s medical legal arena, many insurers have suffered significant losses and have been forced to re-examine their approach to litigation. Similarly, many healthcare providers have been unable to secure professional liability insurance from the commercial marketplace and have been forced to create alternative risk financing vehicles, such as captive insurance companies. As a result, those entities are, for the first time, developing litigation philosophies, which philosophies are likely to change dramatically as they settle into the risk taking business.

The litigation philosophies of companies can vary dramatically, ranging from an approach that places a settlement value on every case, to an approach which constitutes “a million for defense and not a penny for indemnity”. The most effective medical liability defense attorneys know their principal’s litigation philosophy and endeavor to manage and direct assigned cases in conformity with the same.

2. Avoid Handling Each Case In The Same Fashion

It is easy to develop a routine. I eat the same thing for lunch almost everyday. In the defense of medical liability matters, routines are the norm; yet, routines need to be avoided if one’s goal is client satisfaction.

We all recognize that the hourly rate of attorneys defending medical liability cases is below that of other practice areas. Law firms specializing in this area often measure profitability by the volume of cases assigned, which volume creates work for billing associates. Irrespective of how this animal was created, we must acknowledge its existence and effectively manage the process.

The natural outgrowth of a volume legal business is a cookie cutter approach to the handling of cases. Although there are certain tasks that must be performed on each assigned medical liability case (e.g. the complaint must be answered), the more effective medical liability defense attorneys analyze whether each case should follow the same routine path of issuing standard written discovery; completing the plaintiff’s deposition; completing all factual witness discovery before expert discovery is initiated; avoiding settlement discussions until the eve of trial; etc.

The second best practice of highly effective medical liability defense attorneys is that they “think outside the box” and develop a defense strategy to fit a specific case, rather than having every case fit a pre-determined defense strategy. As an evaluator of legal services, I find it remarkably refreshing when a defense attorney suggests a novel approach, such as noticing our expert’s deposition at the outset of a case as a means of demonstrating the weaknesses in the plaintiff’s theory of liability. Such suggestions are rare, but they illustrate the efforts of defense attorneys who understand that the litigation process contains roadblocks to the prompt resolution of cases. The better defense attorneys use non-traditional methods to escape from this litigation maze.

There is no doubt that certain institutional clients may want the medical liability defense attorney to handle each and every case in the same fashion. Nevertheless, the most effective defense attorneys recognize that they are problem solvers and they provide their clients with novel alternatives to standardized case handling. In my opinion, client satisfaction can only be obtained when each new legal problem is confronted with a fresh methodology for obtaining a satisfactory resolution.

3. Recognize And Appreciate The Tripartite Insurance Relationship And The Conflicts It Presents

When a medical liability defense attorney is retained by an insurer to represent its insured healthcare provider, a tripartite relationship is created. The well-established rule is that a defense attorney owes his or her primary obligation to the insured healthcare provider. The third best practice of highly effective medical liability defense attorneys is that they recognize and appreciate the conflicts associated with this tripartite relationship and they do not let them interfere with their analysis or evaluation of a case.

Each healthcare provider named in a lawsuit brings an agenda to the process. For example, the future availability of professional liability insurance (or its cost, if such insurance is even available) may be dependent on the outcome of a healthcare provider’s lawsuit. If the healthcare provider wants the case defended, the defense attorney’s obligation is to find a defense to the case, even if the defense flies in the face of the insurer’s litigation philosophy. In this scenario, the quality of the healthcare provider’s defense becomes secondary to the mere existence of a defense. Conversely, if a healthcare provider is concerned with the exposure presented by a case, the defense attorney’s obligation is to get the case settled as expeditiously as possible, even if a lower settlement might be achieved through more protracted litigation.

The highly effective medical liability defense attorney avoids the conflicts presented by the tripartite relationship by dealing with them directly from the outset of the litigation. The conflicts cannot be eliminated. Rather, they must be openly acknowledged and managed by the implementation of the other best practices, such as the providing of an intellectually honest case evaluation discussed later in this article. Client satisfaction will never be obtained when these conflicts are ignored and, frequently, the attorney/client relationship is irreparably damaged when the defense attorney wears the primary obligation to the healthcare provider on his or her sleeve and overtly compromises the insurer’s position in an attempt to protect the insured healthcare provider’s interests.

4. Immediately Retain Quality Experts That You Would Be Pleased To Have Testify At Trial

The fourth best practice of highly effective medical liability defense attorneys is that they immediately retain quality medical experts whom they would be pleased to have testify at trial. This approach should be axiomatic. Yet, regrettably, defense attorneys frequently fall into routines, which include the retention of the same expert on case after case. These “old standbys” often provide equivocal opinions in an effort to “help” the requesting defense attorneys and the involved healthcare providers. It is also not uncommon to encounter a situation where a defense attorney has refrained from retaining an expert until the plaintiff’s experts have been disclosed or deposed, thereby missing the opportunity to gain valuable insight into the medical issues from the outset.

Highly effective medical liability defense attorneys know that retaining quality experts is vital to both the defense of the involved healthcare provider and to an analysis of the exposure presented by the case. These defense attorneys also recognize that good news is accepted readily and that unrealistic expectations can be created by a “favorable review” which is not ironclad. Neither the involved healthcare provider nor his professional liability insurer are served well by having an expert who will equivocate after reading the plaintiff’s expert’s deposition or who will attempt to defend treatment which is not logically defensible. Moreover, I have never quite understood why certain defense attorneys continue to retain experts who they would be uncomfortable presenting at trial. Although there is certainly a time and place for consulting experts, the better defense attorneys immediately retain experts who they are willing to put on the stand to defend their clients. Please remember that plaintiffs’ attorneys frequently retain their testifying experts long before a case is filed.

Relying solely on one’s own client for an education on the medical issues in a case is a recipe for disaster. Thus, the timing of expert retention is also critical. Highly effective medical liability defense attorneys retain a quality expert immediately in order to obtain education on the medical issues from a neutral party. Armed with this education, these attorneys possess the information necessary to adequately prepare their healthcare provider before any deposition. No defense attorney is capable of adequately preparing a healthcare provider for a deposition unless he or she intimately knows the issues which will be attacked by the plaintiff’s attorney.

Medical liability cases are frequently won and lost at the deposition stage. Through the early retention of quality medical experts, the highly effective medical liability defense attorney creates the best opportunity for the successful defense of the case at hand.

5. Avoid Surprises

Surprises may be nice at birthday parties or Christmas, but they will not endear you to your clients in the medical liability arena. In this venue, advance notice is welcome and surprises are forbidden. Thus, the fifth best practice of highly effective medical liability defense attorneys is that they consistently avoid surprises.

What do I mean by surprises and how can one develop a best practice of avoiding them? In this context, a surprise occurs when a case goes from being defensible to being indefensible without significant prior warning. A surprise also occurs when the value of a case escalates from fifty thousand dollars ($50,000) to one million dollars ($1 million) without significant prior warning. Finally, a surprise occurs when the established litigation strategy on a case is altered at the eleventh hour due to the occurrence of an isolated event, a phenomenon known inside psychological circles as “anchoring”.

Highly effective medical liability defense attorneys avoid surprises through frequent, thorough, and analytical reporting. Many attorneys are good at providing frequent reports. I have cases with certain law firms that write me every time a deposition notice has been issued or a deposition date has been changed. Similarly, many attorneys are good at thorough reporting. I have drawers full of summarized depositions and medical record timelines. However, only a small percentage of defense attorneys provide frequent reports that contain a thorough analysis of the case at its various stages.

Insurers and self-insured entities know that medical liability defense attorneys do not create the facts of the case. Your principals do not expect you to change the facts. They will insist, however, on reports that give them and their representatives all the information necessary to formulate an adequate evaluation of the case. By providing frequent and thorough reports which analyze a case’s exposure throughout the discovery process, the most effective medical liability defense attorneys avoid surprises and take a giant step toward obtaining client satisfaction.

6. Analyze Cases With Intellectual Honesty

Attorneys are professionally trained to be equivocal. From the time we enter law school, we are taught that there are two sides to every argument and that nothing is black and white, only a different shade of gray. When one couples this training with the medical liability defense attorney’s obligation and desire to find a defense for his or her healthcare provider, there should be no question why so many cases are ultimately evaluated as 50/50 propositions on liability.

The sixth and most important best practice of highly effective medical liability defense attorneys is that they know how to evaluate cases with intellectual honesty. This sixth best practice is critical because is it inextricably intertwined with almost all other best practices. For example, without an intellectually honest evaluation of a case’s exposure, it is simply impossible to avoid surprises for your principal.

Highly effective medical liability defense attorneys are able to provide dispassionate, objective and intellectually honest evaluations for their principals, be they healthcare providers or insurers and self-insured entities. The defense attorneys who have mastered this sixth best practice appreciate the need to scrutinize the liability and medical issues and the need to analyze the economic realties of the real parties of interest in the case.

Whether consciously or subconsciously, every intellectually honest evaluation of a medical liability case requires the defense attorney to perform the following mental exercise:

a. Fast forward the case to the eve of trial;

b. Assume that the jury has returned a verdict against his or her client and then answer the question, “why ?”; and

c. Play the role of the plaintiff’s attorney and calculate the settlement figure which the plaintiff’s attorney would not recommend and would simultaneously not advise the plaintiff to reject.

The foregoing mental exercise requires the practitioner to overlay all of the customary components of a standard case evaluation on top of the litigation pressure points involved in a case. The highly effective medical liability defense attorney recognizes that the existence of certain litigation pressure points may make all other aspects of a case evaluation irrelevant. For example, on the eve of trial, it may be largely irrelevant that a case involving a brain damaged child is medically defensible, if the involved OB/GYN has only $100,000 in professional liability insurance and is demanding that the case be settled.

By mastering the ability to perform intellectually honest evaluations, the highly effective medical liability defense attorney provides his or her clients with the greatest service of all: accurate; objective; and reliable information which can be used to formulate decisions regarding the future handling of a case. The attorneys who master this sixth best practice will never have a shortage of work.

7. Make Your Statements For Services Tell A Proactive Story

The greatest source of conflict between medical liability defense attorneys and their principals arises from the billing process. Insurers and self-insured entities spend countless hours developing and ensuring compliance with litigation billing guidelines. Defense attorneys labor endlessly to obtain optimal results for their principals, only to have their bills returned unpaid due to some “billing technicality”.

Highly effective medical liability defense attorneys have mastered the seventh best practice of having their statements for services tell a proactive story. When I first became an associate in a law firm, I was trained that my billing entries should tell the client the story of how I handled the case. The partner to whom I reported spent considerable time revising billing descriptions to ensure that the client was only being charged for proactive work. As a result, our invoices were very rarely challenged.

Over the past ten years, I have reviewed thousands of attorney invoices and I am always astounded by the number of billing entries which reflect reactive action, such as “receive and review”. Moreover, it is rare when an invoice accurately reflects the work represented in the physical file. Nothing will infuriate your principal more than to be billed for work which it has not received or to first learn of some activity on the case (e.g. deposition of the plaintiff) by reviewing your statement for services.

I submit that defense attorneys could significantly reduce billing discrepancies with their principals by having colleagues not involved in the handling of their cases review their invoices before submission to their clients. Believe it or not, your principals want to adequately compensate you for the work that you are performing. However, your principals do not want to pay for services which are clearly clerical in nature and which appear to be an attempt to inflate the amount of the bill.

Highly effective medical liability defense attorneys maintain client satisfaction (and avoid conflicts with their clients) by ensuring that their invoices tell the story about how a case is being handled. The billing story should always be consistent with the work submitted and should be progressive in nature.

C. Conclusion

Evaluating the performance of medical liability defense attorneys is a highly subjective process. There are, however, certain defense attorneys who are more effective and reliable than their competitors. These highly effective medical liability defense attorneys consistently achieve a level of client satisfaction which is unparalleled.

This article has outlined “The Seven Best Practices of Highly Effective Medical Liability Defense Attorneys”. By learning and mastering these seven best practices, each medical liability defense attorney will be in a position to achieve the same level of excellence which I have observed over the years and will ultimately guarantee client satisfaction.