Co-defendants don't have to fight each other
Co-defendants don't have to fight each other
Things can get ugly in malpractice litigation, and the antagonism can be ramped up even higher when the hospital and a physician are co-defendants. With so much at stake, it is not uncommon for these two parties who should be on the same side to start pointing fingers at each other and trying to deflect the blame.
But does it have to be that way? Experienced attorneys consulted by Healthcare Risk Management say that combative outcome can be avoided with the proper strategy before you ever get to the point of litigation.
Communication is key to avoiding co-defendant clashes, says Angela Nolan Clarke, JD, with McGlinchey Stafford in Houston. That interaction should begin as soon as the risk manager gets word of an adverse outcome or error with the potential for liability, she says. Don't wait until someone receives notice of a lawsuit and all the parties start to lawyer up, Clarke advises.
"As soon as you know of a situation, call that physician in and talk it over. Let the doctor know that we're all in this together and you're not going to turn your back on him or her if there is a lawsuit," she says. "Plant that seed very early, before the lawsuit is filed. Create the idea that you're going to stick together rather than turning on each other."
State law and malpractice insurance requirements will have an effect on how much co- defendants turn on each other. Infighting among co-defendants occurs quite often in Texas, because the state has separate noneconomic caps for hospital and doctors, notes Richard Law, JD, also of McGlinchey Stafford. That means the plaintiff will try to get as many parties involved as possible.
"We take the position that we want to present a unified defense as much as possible," he says. "It is never helpful for physicians to criticize nurses, or for the hospital to criticize physicians. We always attempt the unified defense, though it can be a challenge."
One of the most common examples of infighting is for the defendant physician to claim that nurses did not properly or promptly notify the physician of a change in condition, Law notes. The best defense against that claim is superior record keeping, so he advises risk managers to push for accurate nurses' notes with specific times and details.
Joint defense counsel meetings can go a long way toward avoiding the blame game, Law says. When the attorneys are willing to cooperate, all of the defendants will benefit by going through the chart before anyone is deposed to identify concerns. Then everyone knows beforehand what he or she should say, should avoid saying, and what the other attorneys will say as the case moves forward.
Should the hospital ever throw the doctor under the bus to save itself? Not likely, says C. Scott Nichols, JD, an attorney with the law firm of Strasburger & Price in Houston. He says the goal should be to avoid such a tempting scenario in the first place. Quick and candid communication is the key to accomplishing that goal, Nichols says. In today's climate of transparency and mandatory disclosure of unanticipated outcomes and medical errors, he says such situations are fortunately less common than in the past, because the facts should be out on the table even before litigation begins. Prompt discussion between the hospital and any involved physicians and their counsel should facilitate resolution of a matter before it gets to the point of a lawsuit, he says.
Nichols cites an example that suggests this idea works: An emergency department doctor missed a mass suggestive of cancer, and the patient was not referred for follow-up. Two years later, the patient was diagnosed with inoperable cancer for which chances for survival and treatment options would have been much better with a diagnosis at the time of the original scan.
"After this error was discovered, conversations were had and a settlement made with the patient in a matter of months as opposed to the years it would have taken to wind through the court system," he says. "At one time, this scenario would have likely evolved into a 'bus throwing' moment, but with the benefit of early and candid conversation, it was avoided. More importantly, the conversation led to changes in communication designed to avoid a repeat of communication breakdowns between providers, which contributed to the situation in the first place."
Talk to the other lawyer
The finger-pointing still goes on in some cases, of course. So what do you do when the doctor tries pinning all the blame on the hospital? Laura O'Hara, JD, a partner with Strasburger & Price in Dallas, says it is important to remember that unexpected outcomes or negligence are rarely the result of the singular act of any one person, discipline, or event.
"If the doctor attempts to pin all the blame on the hospital when doing so is unfair, have a discussion with the doctor or his lawyer and explain that by doing so, the doctor has, in part, relieved the plaintiff of their legal burden of proof and stepped into the shoes of expert for the plaintiff," O'Hara says. "Further, rarely does a doctor escape being sued in that situation. In fact, placing blame elsewhere may highlight the doctor's own role in the care and have the unintended effect of encouraging the plaintiff's lawyer to file suit including the doctor as a defendant, if he or she has not already done so."
The plaintiff always benefits when the co-defendants bicker and try to prove the other person is more culpable, several attorneys note.Co-defendant infighting also can be problematic in cases involving regulatory matters rather than malpractice. The same problem can occur in regulatory litigation, notes John Meyers, JD, of Ervin Cohen in Beverly Hills, CA.
In cases involving Stark laws, for instance, the infighting can be even more hazardous, because money is not the only thing at stake. Criminal penalties may be involved.
"In those cases, the stakes are very high, but the strategy is similar to what you would want to see in any other case involving co-defendants," he says. "The parties need to get together as soon as possible to discuss their common interests, who may be more liable than the other, and where you're going to go with your defense."
Nichols points out that placing blame where blame is not due may leave long-lasting scars. Hospital administration and the medical staff should have open, regular discussion regarding the processes for addressing physicians' concerns about nursing staff and vice versa so that those grievances are not aired as a defensive measure during litigation.
"Doing so in the midst of a claim or lawsuit carries with it great risk of skewing the outcome to an unjust result for the doctor and the hospital," Nichols says. "Regular communication of this risk is important."
Sources
For more information on co-defendant strategies, contact:
Richard Law, JD, McGlinchey Stafford, Houston. Telephone: (713) 335-2128. E-mail: [email protected].
John Meyers, JD, Ervin Cohen & Jessup, Beverly Hills, CA. Telephone: (310) 281-6373. E-mail: [email protected].
C. Scott Nichols, JD, Strasburger & Price, Houston. Telephone: (713) 951-5621. E-mail: [email protected].
Angela Nolan Clarke, JD, McGlinchey Stafford, Houston. Telephone: (713) 335-2135. E-mail: [email protected].
Laura Reilly O'Hara, JD, Strasburger & Price, Dallas. Telephone: (214) 651-2250. E-mail: [email protected].
Things can get ugly in malpractice litigation, and the antagonism can be ramped up even higher when the hospital and a physician are co-defendants.Subscribe Now for Access
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