New Year's Resolutions 2002

The holidays have passed, the bowl games are over and the year 2002 is upon us. That means it is time once again for the New Year’s resolutions of a medical malpractice attorney. Here we go. In the year 2002, I resolve to:

• Not hold my breath waiting for bad faith liability to be imposed on the CAT Fund. Much as we would all like to see this change in the law, it is a dicey political issue that is going to require a great deal of work, and compromise, to get done.
• Continue to urge treating physicians to remain loyal to their patients during defense depositions. Under the current law, when the defendant notices a deposition of the plaintiff’s treating physician, there is little that the plaintiff can do to “muzzle” a doctor who is willing to answer opinion questions posed by defense counsel. Those answers can often do serious harm to a plaintiff’s case, and our only recourse is to try to convince the doctor to stay out of the fray and let the privately retained experts do battle. Unfortunately, this request often falls on deaf ears, but we cannot stop trying to protect clients from their own doctors.
• Refrain from naming nurses or residents as individual defendants in my complaints unless I have a compelling reason for doing so. I think these folks are natural objects of sympathy and it is more difficult for a jury to return a verdict against them rather than an institution. One major exception would be a situation in which naming a nurse or resident individually would add a second layer of coverage that is necessary to cover the full extent of the damages in the case.
• Tailor the tone of my cross-examination to the demeanor of the witness, i.e., be firm yet polite with the nice guys and reserve my ire and irritation for the bad guys. Jurors react viscerally to witnesses. When the adverse witness is a pleasant person, the cross-examiner loses ground in the eyes of the jury if he or she adopts a tone which is too combative or caustic, regardless of how substantively correct the questioning may be.
• Complete most depositions of the defendant doctor within 2-1/2 hours. There are obvious exceptions, but in routine cases I find that if the deposition goes much beyond that time frame, I am either arguing in circles with the witness or getting lost on collateral points, either of which makes for a less than ideal transcript.
• Pay more attention to the possibility of obtaining 702(e) settlements in cases where the CAT Fund is taking an unreasonable position. This section of the CAT Fund statute permits the plaintiff to settle with the primary carrier for its limits and then try the case for the CAT Fund’s money. With primary limits now being pushed to $500,000.00 as of 2001, these settlement become more attractive.
• Research the medicine before filing a complaint, even where I have a favorable expert review. The plaintiff’s experts are not always right when they say there is a breach in the standard of care. Better to find that out before filing suit.
• Remind myself to be cognizant of the impact of the September 11, 2001, attacks on the mind set of the average juror. Many trial lawyers across the country are struggling with this problem, myself among them. I do not have the solution, but I will continue to talk to others in order to sort out my thoughts on how to best deal with this unprecedented situation, especially when we are presenting disputes and/or injuries which may seem relatively trivial.
• Pray that the other shoe does not drop with PHICO. If such a major carrier goes into insolvency, it will not only have an adverse effect on thousands of pending cases across the Commonwealth, but it could also impact the entire debate in Harrisburg on medical malpractice “reform.”
• Encourage more people to use our Med Mal ListServ. This is a great way to exchange ideas with other med mal lawyers across the state. It has already been one of the best resources we have ever offered to our members. It can be even better one if more people sign-up and participate.

Here’s to a New Year of peace, prosperity and happiness!