An excerpt from Winning Medical Malpractice Cases Using the Rules of the Road Technique by Patrick Malone, with contribution by Rick Friedman.
The Problem
The statistics are staggering: one in three patients admitted to hospitals experiences a medical mistake, and the cost of fixing the harms caused by these errors is $17 billion a year. The number of 250,000 preventable deaths from medical errors per year in the United States according to Johns Hopkins landmark study - the third leading cause of death in the United States. Other published studies note unnecessary medical negligence death as high as 440,000 people per year according to the Journal of Patient Safety.
At the same time, approximately 90 percent of all med mal verdicts favor the defendant. We wish we could take comfort that those numbers might be skewed because the insurers select those cases that they want to try and settle the rest out of court. But the fact is that the majority of medical malpractice claims made to large malpractice insurers—78 percent in one major study published in 2011—are closed with no payment to the plaintiff. Meaning not only are medical malpractice lawsuits lost, but people who are injured or killed by the negligence of a health care professional don't even get a settlement to cover their medical bills.
Yet here is a curious fact: talk to the country’s top medical malpractice attorneys and you will find success rates that are the reverse of the national averages. They win three of four trials (or better), and hardly ever close a case without obtaining some compensation for their loss. How do they do it?
Framing the case: The Rules of the Road™ Technique
The Rules of the Road™ technique, first published in 2006, is a proven method of distilling a case down to its most basic moral issues. When used effectively, this virtually eliminates juror confusion, and dramatically increasing the frequency of substantial plaintiffs’ verdicts. At its most basic level, the Rules technique defines the basic principles of your case in such a way that a legal conflict is logically resolved in the plaintiff’s favor. This approach cannot guarantee victory, but properly articulated Rules—with a capital R—will make you more successful at every stage of litigation.
We’ve written an entire book on the Rules of the Road™ method, which lays out a simple but rigorous set of criteria for what qualifies as a successful set of Rules for any particular case. The “Rules of the Road” concept, which Inner Circle member Rick Friedman first developed for insurance bad-faith cases, adapts perfectly to medical-malpractice cases. We have also published a book called Winning Medical Malpractice Cases with the Rules of the Road Technique that draws from trial transcripts to show how the Rules of the Road method works in malpractice cases. The below ideas will be expressed therein with far greater detail.
Rules can be found in many places. Rules of the Road provides you the method for creating a list of Rules of the Road for your case, sources for these Rules, and how to ensure these are appropriate for a medical malpractice case. Begin thinking about and constructing your Rules from the moment you meet your client, and refine each Rule throughout your case until every word is in keeping with an inviolable standard. You should add, change and or remove Rules in accordance with new information. Discovery can be a wellspring of good Rules material.
Rules of the Road™ in Practice
As I prepare any case for trial, I orient my presentation around three fundamental tenets:
Words matter.
Values matter.
Beliefs matter.
The key is placing medical facts into the framework of what the jury values and believes; you use strategic language, specific words or phrases, and case themes that compel the jurors’ action—in the form of a verdict for the plaintiff.
However, regardless of how convincingly you use words, values and beliefs to your advantage, the facts of a medical malpractice case are paramount. Defense attorneys and judges will crush any plaintiff’s case that is not thoroughly grounded in modern medicine. But plaintiff lawyers can exhaust themselves climbing the mountain of work in learning the medical jargon, preparing the experts and answering all the bogus half-truths from their adversary—or, worse: they become so enamored with their own new quasi-medical expertise that they want to show off to the jury. Whatever the reason, the attorney who doesn’t work hard to fit the medical facts into the case framework is dooming his case for dismissal.
Some plaintiff lawyers take away the wrong lesson from this discussion about simplicity and human story frames. It’s not that jurors are too thick to follow a detailed medical debate. Plenty of them have lots of sophistication. The point, rather, is that when the case is only about abstract medical issues, the natural deference of juries to the medical profession will mean fewer verdicts for the plaintiff. Only when plaintiffs can put the case into a more familiar human frame will juries be less deferential, especially when we can show that the defendant’s conduct violates the jurors’ deeply held values and beliefs.
Finding Your Frame with the Rules of the Road™
The process of finding frames for your case starts with an extrapolation of the (largely negative) cultural zeitgeist surrounding modern American medical care. Here are some common complaints you have undoubtedly heard from clients (or had yourself):
- My doctor is too rushed. He doesn’t listen. He spends most of his time tapping on his laptop screen.
- The hospital sends a different nurse to my room every day. How do they know what I need?
- I can’t get through to the doctor’s office to find out about my test results. I guess they must have been okay or they would have called me.
Rules of the Road™ in Action: The Stillbirth Case
One of our firm’s recent cases involving a stillbirth is a good example of how observant plaintiff advocates find a persuasive frame. Our client arrived at a northern Virginia hospital for a scheduled induction of labor to give birth to twin daughters. Over the ensuing nine hours that led up to an emergency C-section with one of the babies born dead, the fetal monitor strips showed plenty of decelerations and loss of variability to make our experts recoil in horror. We could have stopped the discovery there and would have had an abundance of material for a good medical discussion at trial focused on how one interprets the squiggles on the monitor strips.
But we knew one basic rule of malpractice litigation: the defense always gets experts to defend the indefensible. And even when their opinions are laughable to us, still some jurors will see it as a tie between plaintiff’s experts and defendant’s experts.
Plaintiffs lose ties.
So we followed our own internal imperative: Step the discovery up to the next level. Look for the systemic flaw that explains why the individuals behaved as they did and how the injury was not some random happenstance.
After three motions to compel, we found the gold nuggets:
- The main nurse monitoring our mother’s labor was assigned to a second laboring mother, in violation of recommendations from the society of perinatal nurses that all high-risk mothers, as ours was, deserve one-on-one nursing care.
- This nurse entered most of her notes about both patients at the end of her shift, sitting at a computer terminal at the nurses’ station, filling in dozens of entries about her whereabouts and observations over the past eight hours in the hospital’s electronic medical record.
- Most damningly, the “audit trail” showed that the nurse claimed to be attending both patients at identical times in her shift.
So now the story shifted dramatically. The case was no longer a battle over reading fetal monitor strips. This was about a hospital that wanted to jam as many patients as possible into its profitable labor and delivery unit, with overworked nurses who tried to cope by creating fictitious entries in the record.
Thus were born the case Rules, presented to the jury throughout the trial:
Rules for the Stillbirth Case
A surgeon should always:
1 Give the patient the safest option that does the job.
- Avoid cutting next to nerves if the surgeon doesn’t have to.
- Ask for help if the surgeon lacks experience.
2 Tell the patient the important facts so the patient can make an intelligent decision.
3 Put the patient’s interests first.
This case taught us some lessons that go beyond the specific context of medical malpractice. We learned something about the importance of editing and re-editing your Rules into the clearest, most succinct declaration possible. Perhaps even more importantly, the order in which the case theory unfolded—and the order of presentation of the Rules themselves—turned out to be vital to the persuasiveness of this case.
Sometimes it’s not an institution that deserves the sharper focus in your med-mal case, but an individual healthcare provider who would rather stay out of the spotlight of your case. In this case, rather than focusing myopically on our client’s case, we broadened our framework to show that this kind of mercenary behavior puts everyone’s health at risk.
You are not throwing out the medical details, but fitting a recognizable frame around them. The snugger the fit, the better the frame.
Developing Rules through Client Interview
Medical malpractice cases can be built on the framework of negligence and indifference; your most persuasive case frames might come not from arduous depositions and motions to compel, but straight from your client. In the stillbirth case, for instance, respecting the client’s story meant taking her seriously when she insisted that the nurse had left her alone through large stretches of the night, despite the beautifully documented record that showed the nurse in attendance every fifteen minutes like clockwork. This led us to the audit trail documents that validated our client’s account.
In another case,[1] a critical detail emerged only after we went back and re-interviewed the client. The detail was simple: In the preliminary meeting of the surgeon with the patient in the patient’s hospital room, the surgeon never laid on a hand to examine him. This early detail would have been entirely disregarded by some plaintiff’s attorneys because it had no proximate causal link to the outcome. But it was a telling fact that fit the frame: the uncaring surgeon pressuring the patient into unwise elective surgery to fill the surgeon’s OR schedule.
Many med-mal clients come to plaintiff lawyers with similar stories. Recurrent themes include:
1 The doctor left the hospital after the surgery, went on vacation, turned the care over to someone else.
2 When things went awry, the doctor simply disappeared. No phone call, no email, nothing.
3 No apology or explanation ever crossed the doctor’s lips.
All these scenarios—abandonment, indifference, evasion—violate the fundamental need of every patient: “I want someone who cares about me.” Doctors have a sacred trust to care about their patients. When they break that trust, they must pay.
Framing Rules around Misdiagnosis
Not every case will have a subtext that pulls on the heartstrings of your jurors; sometimes the doctor struggled with a diagnosis, and simply came up wrong. The defense is “clinical judgment,” and it can be powerful. Why is “clinical judgment” so appealing as a defense? It plays into the theme of doctors treating patients as individuals, not as cookie cutouts: “The doctor who cares about me.” And the plaintiff lawyer reinforces this frame inadvertently when she talks about “standards” and “consensus”—which can sound like treating all patients the same.
Many of these cases can be successfully reframed by talking about how it was the doctor who lumped the patient into a diagnosis/treatment box with all other patients, when this patient had something different that required individualized care. But the patient advocate must be sensitive to the adverse framing to see this.
Consider a case in which a forty-two-year-old woman died of a bacterial infection that her internist misdiagnosed as the flu. We found that it was important to talk about how the doctor had treated her like every other patient whom he thought had the flu, when there was something fatefully different about her that he disregarded. Worse, what was different about her was a vaginal discharge, which he decided arrogantly that he didn’t need to test. A simple swipe of the patient’s discharge with a cotton swab would have given the correct diagnosis in time to have saved her life with ordinary penicillin.
The Rules™ technique helped us adjust the frame of the case ever so subtly to emphasize the doctor’s cookie-cutter approach and his arrogance: a human story that the jury had no trouble grasping.
Our successful Rules of the Road™ were as follows:
1 A doctor should know his limits and act accordingly.
2 A doctor should test rather than guess.
3 A doctor should pay attention to what is different about this patient, rather than only those things that are similar to other patients.
Conclusion: Effective Rules of the Road™ Call Jurors to Action in Med Mal Cases
In malpractice cases, jurors do not merely decide private disputes between patients and their caregivers; they resolve difficult questions about what standards of care should exist for patient safety and how they should be enforced. Too many plaintiff lawyers fail to teach this vital civic lesson to jurors. They not only miss an opportunity to help jurors feel better about all the time invested in trial away from their families and jobs; they greatly shrink their chances of winning justice.
The great advocates have long known this. Moe Levine, one of the pioneers of plaintiff advocacy, put it this way in a closing argument:
"…your verdict is important. It may very well be one of the most important decisions you’ve ever made, either way. If you find the defendant not guilty, you will have approved a system of hospital practice, and will have exonerated fault, and will have given approbation to a continuance of the conditions that you heard described. If this is your choice, if you feel you must, you will. But if you think it’s wrong, if you think it ought to be stopped, by your verdict you should say to these hospitals: These are human beings, small human beings, but human beings, important within their little family unit if not to the rest of the world. Treat them with tenderness; treat them with love. They came to you and they offer you their bodies, asking only, ‘Do for us what needs to be done.’ They entrust themselves completely to you." [For more see Moe Levine on Advocacy].
One of today’s most successful patient advocates, Steve Yerrid of Tampa, attributes his streak of record-busting plaintiff verdicts in malpractice cases to three things coming together in the case: “Great clients, a worthy cause, and a courageous jury.” Like Moe Levine before him, Yerrid knows that courageous juries are made, not born. The right framing by the plaintiff’s lawyer can inspire a jury to deliver a courageous verdict, but only if done with great care and sensitivity.
Don Keenan teaches that the plaintiff’s advocate must understand how the natural desire of juries to do good fits within the framework of a trial. The plaintiff’s lawyer in any trial necessarily spends a good deal of time attacking the defendant. Defense lawyers do the same to the plaintiff. But if that is all that happens, the trial becomes a negative, sour experience—a choice for the jury about which side they find less distasteful. A great lawyer like Keenan knows that the sensitive advocate must not merely tear down, but must build up. The idea is not to instill fear but to inspire courage. The strong plaintiff’s verdicts come when the jury is empowered and ennobled to do good. What could be more uplifting than to inspire the jury to render a verdict that protects the community from harm and helps medical providers deliver treatment that is caring and safe?
Winning Medical Malpractice Cases with the Rules of the Road Technique contains a foreword by leading trial consultant David Ball, as well as expert advice from several members of the Inner Circle of Advocates including Mike Becker, Mark Bocci, Dennis Donnelly, Gary Fox, Don Keenan, Jim Leventhal, Paul Luvera, Randi McGinn, Brian McKeen, Liz Mulvey, and Steve Yerrid. In addition to expert advice on handling medical malpractice suits, the book also contains a section of commentary by Malone and Friedman on how and why they used Rules of the Road within their trial transcripts.
For more on successfully handling medical malpractice cases, please see the Trial Guides Top 10 Medical Malpractice Resources for Lawyers.
[1] Michael Wood, et al. v. James Tzeng, et al., Civil Action Law 09-04587. The transcript, with my detailed annotation, comprises Part II of Winning Medical Malpractice Cases with the Rules of the Road™ Technique.