31 Trial Lawyer • Fall 2023 be able to get through this process, and then ask them again if this is really what they would like to do. Our client was incredibly sweet, well-organized and had critical medical records already in her possession. We began our work-up to see if this was a meritorius case. Case viability Our firm always spends considerable time and energy prior to the client signing a fee agreement to determine whether there has been a violation of the standard of care that caused the harm. We work with nurse reviewers who develop medical chronologies and do issue spotting for us. The reviewers point out what records are missing and why it is important that we have those records. Once we are confident we have a complete set of records, we will then engage with experts in the relevant area(s) of medicine. In this instance, we contacted the emergency medicine physician who treated our client shortly after her stroke symptoms began to get his opinion on causation. We were told, with certainty, that it was the neck adjustment. We then contacted two chiropractors to evaluate the standard of care issue. This took some time to untangle, but, ultimately, they provided opinions that would allow us to draft a complaint and commence litigation. Experts Make sure you retain an expert in the exact same position as the defendant provider. This may sound simplistic but it is very important to juries and the defense will do this. It is highly recommended you hire multiple experts. The defense will certainly do this, and, if you are not willing to make the investment, you will be outgunned at trial. Other relevant pre-trial questions are: Does your client need a life care plan? Is there a loss of earning capacity claim? Do you need to have your client evaluated by a pediatric neurologist? Get started on this early because it will take you a lot longer than you realize, especially if you have to fly your client to the expert to be evaluated. Schedule meetings with subsequent treatment providers as they can be invaluable and may become your experts, particularly in the area of causation. In all your communication with experts, it is vitally important that you know your written communications may end up on the big screen in front of the jury during trial. For this reason, it is essential that written communication be kept to a minimum and is dry and transactional. Discuss your creative ideas, theories and questions with the experts during phone or video calls. Educate your experts that anything they write or any research they do that’s in their file may end up on the big screen and they may be asked questions about it in front of the jury. Selecting experts is a critical piece of prevailing at trial. The jury will be instructed on the standard of care and if your expert has not held leadership positions in their field, they may not stack up against a long list of experts that the defense will call (many of whom will have held leadership positions in the various committees dealing with standard of care issues). In our recent trial, we called our client’s hematologist, obstetrician, treating neurologist and occupational therapist, as well as various experts in the areas of neurology, emergency medicine, imaging, vocational rehabilitation/earnings loss and neuropsychology. At trial, the defense standard of care expert held leadership positions on international standards committees, national standards committees, and was the former president of the Oregon standards committee. We called two young standard of care experts, one more academic and the other more clinical. My belief as to why we lost the trial has to do with this foreign concept of “standard of care” to the general public and how the jury evaluated that standard. Juror questions revealed that they wanted a set of written rules, which they never received, to use in determining whether there was a violation of the standard of care. The jury sided with the defense’s seasoned expert who held all the leadership positions. This was a mistake we made. We ought to have retained someone on a professional committee at the state or national level. Spend time educating your experts by using the relevant jury instructions in your conferences with them. During your direct examination, weave the language of the instructions in your questions. Be very explicit about how they know what the standard of care is and why it was breached in your particular case. Do not rely on subtlety. Ensure the “locality concept” is neutralized at every opportunity by asking if the standard is national, statewide or regional. Causation The second key piece to prevailing is establishing causation. If the negligent care and the resulting harm do not occur simultaneously, there will likely be a full attack on causation. In our recent trial, given the four-day interval between adjustment and stroke, the defense team spent the majority of their time and money defending causation. They called a neurosurgeon, a neurovascular surgeon, a neuroradiologist, the author of the peer-reviewed article examining causation v. correlation and a Ph.D. in biomechanics from Canada who is arguably the leading authority on the causation issue we were litigating. Timelines, which are important in most cases, become particularly important in medical cases. Timelines help orient jurors to the most critical pieces of information. We engage a graphics company early on in our cases and schedule regular meetings with them to update them on how our view of the case is evolving and how we plan to tell our client’s story to the jury. If they are engaged early and have created graphics or a timeline prior to depositions being See Lessons Learned p 32
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