39 Trial Lawyer • Fall 2023 See The Horse’s Tail p 40 Ideally, surgery should take place within 48 hours of the onset of symptoms, so waiting multiple days for surgery would not be acceptable. But prompt surgery is not what happened. The night the MRI came back (and the diagnosis was made), the on-call neurosurgeon was busy and never visited Larry. Instead, Larry sat nervously in his hospital room overnight and into the following afternoon before two neurosurgeons visited him. He wasn’t examined until after lunch time the next day. Following the examination, the neurosurgeon scheduled Larry’s surgery for the following afternoon. Nobody discussed with Larry what cauda equina syndrome meant or the urgency of his condition. He was left to search his own MyChart to discover his diagnosis of CES and to use “Doctor Google” to find out what that meant. Ultimately, Larry was at the hospital for two and a half days following his CES diagnosis before surgery occurred on the afternoon of the third day. By then it was too late. He was left with left leg paralysis, permanent catheterization and sexual dysfunction for the rest of his life. Challenges of large malpractice cases Medical negligence cases present one of the most difficult areas of personal injury work. As the attorney bringing the case, you must work hard to master the technical details of the medicine to effectively present your case. Medical negligence cases typically come with large damages, but with these cases also comes large costs. You must retain the right medical experts, overcome the myriad of legal challenges from the defense, potentially spend years in protracted litigation and motions practice — all with the understanding that you must be able and willing to try the case and to potentially lose it. It is one thing to put enormous amounts of time and energy into the case if you believe it will settle. It is another to risk the loss of hundreds of hours of time and significant costs if you do not prevail. Most malpractice cases result in defense verdicts. This occurs for a variety of reasons, including the following: the medical malpractice defense bar contains some of the best and most highly specialized civil defense attorneys in our state, the defense has access to many of the absolute best medical experts, the insurance companies have effectively unlimited money to defend the case, and jurors are often reluctant to find negligence against medical providers in all but the most egregious cases. Medical malpractice cases are factually driven by medical records. Success at medical malpractice cases comes down to case selection. Not every bad medical outcome means that there was malpractice or that there is a case worth pursuing. It can save you years of heartache if you retain strong experts you can trust to earnestly evaluate the case with a critical eye rather than tell you what you want to hear. It’s better to know before you file the complaint that your case has dramatic challenges than to be stuck chasing bad money with good money after you get deep into an imprudently filed case. These considerations were in play with Larry’s case. There are hardly any “straightforward” malpractice cases. It appeared we had a strong liability case against the hospital’s neurosurgeon for waiting to perform surgery following his CES diagnosis, and it also appeared that we had significant damages, but, as with all malpractice cases, there were challenges to overcome. Independent contractors Based upon expert reviews, we had two target neurosurgeons we believed had committed malpractice. But when drafting the complaint, it was not initially clear whether these doctors were employed by the hospital or an independent clinic. This issue frequently arises in malpractice cases. It can be very difficult for a patient who has been injured to know whether the doctor who harmed them in a hospital was an employee or an independent contractor. When you go into the hospital for surgery or other treatment, you probably think of the people who treat you while you are there as hospital employees. Often that is true. For instance, nurses are usually employed by the hospital. But frequently, doctors are not employed by the hospital in which they offer treatment — they are independent contractors. In our case, we learned that both neurosurgeons were not actual employees of the hospital and were instead employed as independent contractors by an outside clinic. If there is reason to believe that the doctor was an actual employee of the hospital, or that the hospital might be liable under another legal theory, the hospital should be named in the lawsuit. If it emerges that the hospital was not responsible, it can be dropped from the lawsuit. However, if the hospital is not part of the lawsuit and it is later discovered they had liability, it may be difficult or impossible to sue them. Whether a physician is an employee or an independent contractor hinges in part on the agreement, usually written, between the doctor and the hospital. But there is more to it than that. Even if the agreement says the doctor is an independent contractor, the relationship between the hospital and doctor may be more like that of an employer and employee. How can you tell? It mostly boils down to how much control the hospital has over the doctor’s work. The more control the hospital exercises, the more the hospital looks like an employer from a liability standpoint. Even if the doctor truly is an independent contractor, there are still some situations in which the hospital can be held liable for the doctor’s actions. For instance, if you are treated in a hospital’s emergency room and did not have the ability to sign an admission form telling you your doctor was not an employee, or if a physician appears to be a hospital
RkJQdWJsaXNoZXIy MTY1NDIzOQ==