The case, Miller v. Polk, No. A24A0404, was recently heard by the Georgia Court of Appeals. [As of April 11, TK, the case was still pending.]  Miller is a medical malpractice case involving the death of a patient who died while being cared for by a nurse anesthetist with an alleged chronic substance abuse problem. One of the issues at appeal is whether an employee who has been disciplined because of personal issues is “unemployable,” and thus would have been negligently credentialed.

While the fact pattern of every medical malpractice may be different, these cases often feature complicated medical issues, heightened emotions, and millions, even tens of millions of dollars in claimed damages. We spoke with several mediators and attorneys who handle medical malpractice cases about current trends, and what attorneys should keep in mind when representing plaintiffs or defendants.

 “The Miller case is interesting,” says Eric Frisch, an attorney and mediator based in Atlanta. “There is a line of cases that hold that a healthcare provider is not under an affirmative obligation/fiduciary duty to disclose their substance abuse to the patient … Miller is a credentialing matter and, as I understand it, the claim is against the staffing agency, not a privilege granting entity like a hospital or clinic.”

The Miller case represents a trend, he adds. “Now we see a lot of claims for ‘administrative’ malpractice, meaning claims directly against an entity like a hospital for inadequate policies, understaffing, ‘profits over people,’ permitting practitioners to perform certain types of procedures (I have two cases involving trial of labor after C-section without a physician guaranteed to be on premises), and the like,” says Eric. “And there are issues about when an on-call provider owes a duty of care to a patient, which is constantly evolving, especially with entity-owned practice groups.”

Attorney and mediator Dax Lopez has also seen more cases involving medical record falsification claims. “Recently, I have noticed an increase in cases that involve allegations that the defendant medical providers altered, deleted, or revised electronic medical records after the fact as to an issue relevant to the case,” says Dax. “I think these types of allegations can have a significant impact on the value of a case. As always, it is never the crime, it is the coverup that will cost you. In these cases, if it appears that the defendant is trying to cover up a mistake by changing something in the medical record, a jury could find this to be compelling evidence worthy of a large award depending on the damages.”

Challenges for Plaintiff’s Counsel

There are a number of issues at play in a medical malpractice case, says Jack Slover, an Atlanta-based attorney and mediator. “Issues today vary considerably such as misdiagnosis, unsuccessful treatment of a medical condition or issue and many others. However, I believe a large percentage arise from differences in clinical opinion,” he says. “Medicine is an inexact science which fosters varying opinions and actions. Plaintiff’s counsel must be cognizant of this and must secure expert opinion which is not based on personal preference but on a deviation from the standard of care.

“Chosen experts must be able to support their opinions based on reliable principles and methods. This will allow them to pass Daubert challenges and carry the burden in proving the Plaintiff’s case,” says Jack. “Obviously, this entails considerable time and money. They must be able to communicate to the jurors in understandable layman’s terms the issue with the negligence and the deviation from the accepted standard of care.”

Plaintiffs’ attorneys should make sure that they have a complete understanding of their clients’ medical care, both before and after alleged malpractice, when representing them. “The vast majority of attorneys who represent plaintiffs learn for the first time the full picture of their clients’ medical care during their clients’ own depositions and often are surprised by the information revealed,” says Kristin Pierson, a mediator and attorney based in Atlanta.

Challenges for Defense Counsel

Defense counsel must also have experts who can communicate to the jury the physician’s or other health care provider’s decisions and actions were appropriate and within the standard of care. “At one time health care providers actions were generally accepted and were not generally questioned. However, with the advent of managed healthcare, people often feel that patients are ‘pushed through’ in a hurried fashion and not listened to,” says Jack. “There is a lesser tolerance for unsuccessful treatment, misdiagnosis or other medical maladies.”

Regardless of whether you’re representing a plaintiff or defendant, attorneys must consider other issues, including venue, when litigating these cases. “The fact that medicine has become more institutionalized has to a degree taken away the feeling of personalized care,” adds Jack. “This leads to more large verdicts and encourages more lawsuits when issues arise.”

Defense attorneys should also consider what a jury might consider appropriate medical care, adds Kristin. “Taking seriously lay person perceptions of medical care, separate and apart from whether the medical care is defensible on a granular level [is important],” she says. “Oftentimes, the “optics” of the medical care at issue are just as important — if not more — than the care actually provided.​”

Mediation: A Compelling Option  

The uncertainty of jury verdicts and the challenges of presenting medical testimony are two reasons why health care malpractice cases are often mediated. “The Miller case, and other med mal cases with numerous defendants that involve contractual issues coupled with the death of a patient, are particularly well-suited for mediation because the complexities of the case will necessarily lead to lengthy litigation and persistent uncertainty,” says Ellen Harmon, a mediator, arbitrator, and attorney in St. Louis, Missouri.

“Legal costs, particularly for defendants, are likely to skyrocket as the case drags on. The Miller case was appealed and remanded on multiple points. The emotional turmoil will continue as long as the litigation is unresolved, and the outcome is yet uncertain,” says Ellen. “Costs for defendants will accumulate and plaintiffs will have no closure in regards to the loss of their loved one. Mediation can provide swift and certain resolution for all, along with mitigating litigation costs.”

Confidentiality is another benefit of mediation. “Both mediation and arbitration allow the plaintiff privacy in articulating the incidents without the exposure and embarrassment of publicly sharing in a trial setting,” says mediator Gino Brogdon, Jr. “The most important advantage is the ability to privately calculate and control their outcomes and risk, especially since the odds are against plaintiffs.

“Mediation and arbitration also give defendants great advantages,” he adds. “The confidentiality of these processes allows medical practitioners and medical facilities to make decisions without their reputations being leveraged against in the same way they can in a public trial.”

Finally, mediation can allow creative solutions to be crafted in private, says Gino. Choosing an experienced mediator who is familiar with the issues and emotions involved in medical malpractice litigation can help the parties not only reach resolution but to move forward with their lives as well.