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The Advocate
Winter 2009/2010
When Multiple Healthcare Providers Are Sued Together: The Case For A Coordinated Defense
By Michael McCall
Medical Mutual Senior VP of Insurance Operations
“A house divided against itself cannot
stand.” “United we stand; divided we fall.”
The foregoing sayings are aptly descriptive
of the potential pitfalls inherent in the
defense of a medical malpractice claim
against multiple healthcare providers.
If defendants begin to point fingers at each other in order to defend themselves, they effectively shift the burden of proof to the defense because defendants essentially are making liability claims against each other.
In Medical Mutual’s experience, the
defense of any claim, whether with or
without merit, is optimized when the
party–defendants coordinate their efforts.
For this reason, Medical Mutual requires the
attorneys we use to defend legal actions
against policyholders to communicate early
in the process with their legal counterparts
representing other provider-defendants in
the same claim. The goal is to coordinate
efforts in the investigation, the legal Discovery
Process, the analysis of merit, the settlement
(if the claim is perceived to have
merit) or the ongoing defense of a claim
deemed to be without merit. As most of our
claims (approximately 75%) are ultimately
closed with no payment (non-meritorious),
we are most often seeking to coordinate the
defense of claims without merit.
The impediments we experience in our
efforts to coordinate the defense of a malpractice
claim are seen most often when
party–defendants are insured by different
insurance companies. Divergence in
claims-administration philosophies, litigation-
management procedures and legal
advocacy philosophies of the attorneys
selected by companies for defense oftentimes
hinder, if not defeat in total, the
best efforts to coordinate the defense of
the providers involved in the claim.
Pitfalls Of A Divided Defense
When party-defendants in a malpractice
claim behave in a unilateral manner to
optimize their respective individual
defense positions, they do so to the detriment
of the other party-defendants and
that, in turn, not only impacts the other
defendants and the defense of the entire
claim, it invariably comes back to haunt
self-serving defendants as well. An oftenseen
example is when defendants highlight
on the legal record weaknesses in
each other’s defense. Ordinarily in a malpractice
claim for damages, the burden is
on the plaintiff to prove liability. If defendants
begin to point fingers at each other
in order to defend themselves, they effectively
shift the burden of proof to the
defense because defendants essentially are
making liability claims against each other
in arguing their own respective defenses.
When such behavior occurs in a non-meritorious
claim, the case becomes much
more costly to defend, much more difficult
to have promptly dismissed and
much more risky to take to trial. When
such behavior occurs in a meritorious
claim, the case is much more difficult to
settle globally and the overall settlement
dollars are much more likely to exceed
what would otherwise be fair and reasonable
for the damages alleged in the case.
A very compelling phenomenon highlighting
the pitfalls of a divided defense is
the reaction of lay jurors during a jury trial
in which defendants blame each other for a
patient’s outcome. Jurors tend to perceive
such finger-pointing as both self-serving
and dishonest. They lose trust in the defendant
providers, they assume medical error
occurred and they become angry with
healthcare providers whom ostensibly are
not “owning up” to their responsibility for
the patient’s adverse outcome of care. The jury’s sympathy shifts to the plaintiff and
their anger gives rise to inflated awards
with judgments against multiple providers.
In claims with merit, settlement discussions
are made immensely more difficult to
resolve because of a contentious legal record
and defendants’ emphasis on getting the
best individual “deal” with the plaintiff – to
the detriment of other parties. In short,
parties refuse to agree on apportionment,
refuse to agree on a private, off-the-record
method of dispute-resolution concerning
apportionment and, negotiate individual
settlements in an atmosphere charged by
the inflationary risk of a jury trial in which
lay jurors are called upon to assess both the
plaintiff ’s damages and the apportionment
between parties. Ultimately, divisive defense
tactics among providers in the litigation setting
can carry over to the clinical setting
where rapport, trust and respect among the
same providers are profoundly impacted by
the litigation experience.
The Benefits of a Coordinated Defense
Communication between defense lawyers
in a multi-defendant case is vital to optimizing
the defense of that case for a variety
of reasons. Coordination of efforts and
assignment of tasks eliminate redundant
activities and redundant costs associated
with the defense of the case. For instance,
which firm will be responsible for obtaining
all relevant medical records; or, which
firm should handle the procurement of a
medical expert witness who will testify on
the question of causation?
Communication between attorneys can
prevent one defendant from being “blindsided”
by the testimony of another. The
purpose for the communication is not to
influence how another party should testify;
but, instead, the purpose is to eliminate
unexpected
surprises. When a
defendant is blindsided
by the testimony
of a
co-defendant,
human nature tends
to prompt both
anger and retaliation.
Not only does finger-pointing and
retaliatory behavior taint the legal record
in the claim, as mentioned above, clinical
relationships suffer as well.
As noted earlier in this discussion,
approximately 75% of Medical Mutual’s
claims are closed without settlement
payments which means these claims
were without merit; but when defendants
“joust” in the legal record, these claims
become much more difficult and expensive
to close. Whereas, with a coordinated
defense both the time and expense
associated with obtaining a dismissal are
conserved.
With respect to meritorious claims in
which more than one defendant is believed
to be culpable, coordination and cooperation
among defendants are essential to
assure settlement values are reflective of
actual damages, with negotiations much
more likely to be influenced by valid mitigating
arguments put forth by a united
group of defendants. Whether or not the
defendants agree among themselves on
respective participations and proportions of
contributions toward the settlement, they
remain united in their negotiations with the
plaintiff in order to obtain a fair and reasonable
global settlement of the entire claim.
In short, if disagreements on apportionment
exist, the defendants effectively “agree to disagree”
among themselves off-the-record,
sparing the legal record their disagreements
surrounding apportionment and focusing
the negotiations with the plaintiffs on fair
compensation for actual damages. In the
coordinated defense, the defendants who
cannot agree on apportionment at least
come together to agree upon a method of
“internal” dispute resolution (oftentimes a
private, confidential arbitration) to enable
productive collaboration in arriving at the
global settlement. Coordination eliminates
the likelihood disagreements concerning
apportionment will undermine negotiations
with plaintiffs. Case settlements are more
reasonable and timely. Highly public jury
trials in which juries must assess total damages
and apportion those damages among
defendants are avoided.
Medical Mutual strongly believes all parties
benefit, including plaintiffs, when the
defense of a case is coordinated. Accordingly,
we always urge our defense attorneys to
strive to coordinate the defense of a claim,
even if the case involves defendants not
insured by Medical Mutual. While we are
much more successful in achieving a coordinated
defense of a case when we insure all of
the defendant parties, whenever we succeed,
our experience illustrates vividly that “a
house united, indeed, does stand.”