FREE White Papers:

Bulletproofing Your Medical Practice.

This 297 page book in PDF form describes practical risk management strategies to prevent medical malpractice claims, defend them or cushion their financial impact.  The book draws its advice from the insights of attorneys and others who have been battle-tested in the arena of medical malpractice defense.

Click here for a free download.

How A Medical Malpractice Defendant Can Assist Counsel in Disproving A Patient’s Claim of Medical Negligence.

This blog provides a succinct explanation of what a medical defendant can do to assist defense counsel in defending negligence allegations.

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Five DVD Set:

Medical Malpractice Survival Training DVD

By: Nadine Nasser Donovan, Esq.

A medical malpractice defendant who is aware of criticisms and opinions by opposing experts is better prepared to defend her case and has a greater ability to assist in her own defense.

Transcription of the Video:

Reviewing the opinions of opposing experts, and pointing out for counsel the flaws, the vulnerabilities, the assumptions, the inappropriate assumptions that they are making and accusing you of malpractice. That’s an opportunity that you have where you can actually get involved in the case, a real thing you can do to assist counsel.

Thank you. The comment was that as hard as it is to look at those depositions and look at those expert opinions, it’s very important to do because it has assisted this particular doctor in helping her attorney figure out the issues of the case. And it’s hard to get that envelope from counsel and it makes your heart sink. But one coping method that was just suggested is to set aside a certain time per week to deal with the lawsuit and with the papers that you are being asked to review, where you are compartmentalizing that. I think it’s is a very apt suggestion. It’s a good one. Where you have the time when you are dealing with it, and you can identify issues that will greatly assist the attorney who is representing you. And so why not take that opportunity? Put in the time. This is a very time intensive endeavor and I know that in your heart, you feel resentful. But you have to do this. You are thinking, “How did I get in this position?” But the fact of the matter is, you are in this position now. And so you want to get yourself out of it. Do whatever you can that you have control over to get yourself out of it in the best possible way. And this is one of the things you can do, putting in the time to go over the opposing experts’ opinions and point out to counsel why they are flawed.

Another suggestion is to review what the plaintiff has said, the patient’s actual testimony, because he or she is going to be talking about conversations with you and you can point out where there are discrepancies, or she will say, “Oh, well, the doctor didn’t recommend this particular medicine.” And you can say, “Wait a minute. The record demonstrates I ordered the prescription and we called it in to CVS. How can she say that?” That’s a factual discrepancy. And so now counsel has that information that they could use at trial and they can cross examine her on it, or other maybe more nuanced things that you can identify the plaintiff, it couldn’t have happened the way that they describe because of information that you have. And so it is important to go through that exercise and it’s of great help to defense counsel.

The question is “Is this usually provided to the defendant?” This is where at the outset of the case, you talk about the level of activity you want to be involved here. You want to get this information. You want to review it. Now remember, there may be a strategy decision about… Remember what we were talking earlier, about other providers and what they did that could cloud your opinion, regarding what you did, and they may not want you to form new opinions in the case? And that can be a legitimate area, but at least it is an area that you can have back and forth with counsel and talk out and weigh the benefits of finding out the whole context versus what you did. But certainly, learning what the opposing expert is going to say can only enhance your ability to represent what you did and be able to describe what you did and give your reasoning because now you know what they are attacking. They are saying that you should have ordered these four tests and you are explaining, “Well, the reason that I didn’t order these four tests are x, y, and z.” You are ready for it. You don’t want to be sand-bagged, either at deposition or at trial on that information. You want to be ready. Knowing what the opposing expert is going to say, I think, is crucial for you guys as defendants, not only to be able to properly explain what you did, but also to assist counsel in showing the vulnerability in those opposing opinions and that’s something you guys, as experts, are able to address.

Now there may be some opinions on causation that you are not qualified to address, right? If you are an emergency room physician and the issue has to do with a cardiology issue, a causation issue, well, you usually don’t deal with that if you are an ER doctor, and in that case, you are not going to be qualified really to comment very much on that. We understand that and we have experts to deal with that. But certainly on the standard of care breach issues, you’re going to be testifying to that. You are going to be explaining your reasoning. And so knowing what the opposing experts are going to say on those points is very important, and being able to assist counsel in identifying vulnerabilities is very helpful. It is something that you can do, a concrete thing you can do to help counsel.

About the Author

nadine_thumbnail_150Nadine Nasser Donovan, Esq. is a consultant/trainer for SEAK, Inc. She spent 18 years in the defense of medical professionals in medical malpractice actions and before medical licensing boards. She is also a Legal Writing Instructor at Boston University School of Law, and an Adjunct Professor at New England Law/Boston, where she teaches in the areas of medical malpractice and hospital law. She can be reached at nadine@seak.com, or (617) 431-3390.