Medical Malpractice Cases
Medical Malpractice is now the third leading cause of death in the United States. Common types of cases in the field of medical malpractice include birth injuries, emergency room errors, failure to diagnose, misdiagnosis, anesthesia errors, medication errors, surgery errors, and improper treatment. Analyzing the death rate from preventable medical error over an eight year period of time, Johns Hopkins researchers demonstrated that more than 250,000 people per year die in the United States as a result of medical malpractice1. That means that 9.5-10% of all deaths in America are due to preventable medical malpractice. And those are just the deaths. Even more people are injured by medical malpractice and prescription drug side effects every year.
As plaintiff lawyers, part of our job is minimizing or preventing public harm. Given the number of Americans hurt and killed every year by preventable medical negligence, it is no surprise that medical malpractice is the third leading area of personal injury practice, with approximately 31% of plaintiff lawyers claiming to handle medical malpractice cases, although we believe lawyers dedicated to malpractice as a major focus is a much smaller percentage. Despite the very serious public risk of medical malpractice, the loss rate for plaintiffs at trial is staggering – over 90% of hospitals and doctors win at trial, often despite evidence demonstrating clear medical negligence. This leaves taxpayers, paying public benefits due to the injured party’s disability in the amount of $17-29 billion / year according to an older study published in 20002. Jurors are willing to tax themselves, rather than hold a doctor responsible even when the doctor kills the patient.
In addition to the risk of loss at trial being high, the costs of pursuing these cases are amongst the highest of all plaintiff cases. Case selection skills are critical, and often involve hiring a legal nurse consultant and expert doctors to review the case and confirm that the defendant violated the standard of care before you ever accept the case.
One of the most common problems for lawyers handling these cases, is that unlike auto cases, the “rules” of practicing medicine are not as clear as rules that govern drivers in an auto case. There are few bright line rules like there are with driving. If the defense keeps you in that “grey area,” you will lose. Another major challenge is jury bias, as demonstrated for the past thirty years by Greg Cusimano and David Wenner in their research, which has increasingly contaminated the American public through support from major corporations (such as insurers, big tobacco and big pharma), tort reform politicians and talk radio. Despite stories of doctors leaving for other states, The Medical Malpractice Myth, attributes the spike in malpractice insurance premiums not on medical malpractice lawsuits, but instead on the doctors’ own insurance companies.
With such a high loss rate, combined with the cost of handling these cases, we recognize the invaluable importance that medical malpractice lawyers provide society in attempting to keep the injury and death rate from medical malpractice to a minimum. As a result, Trial Guides has created a set of medical malpractice books and medical malpractice videos aimed at helping lawyers handling these difficult cases to win for their clients. These medical malpractice resources will help any lawyer, at any experience level to handle these cases better, increasing your opportunity to win in cases that otherwise would result in a defense verdict.
1 Makary, M. Medical error – the third leading cause of death in the US, BMJ 2016;353:i2139.
2 Kohn LT, Corrigan JM, Donaldson MS, editors. To err is human: building a safer health system. Washington (DC): National Academies Press; 2000.
Top 10 Medical Malpractice Resources for Lawyers
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Rules of the Road™
A Plaintiff Lawyer’s Guide to Proving Liability
Rules of the Road™ is America’s bestselling text on proving liability. The book directly addresses medical malpractice cases, helping you take a case filled with complexity, confusion, and no set standards for practice, and instead create “rules” from a variety of medical sources with which the defendant and defense experts cannot credibly disagree. This helps demonstrate to the jury that the doctor chose to break known and accepted rules of medical practice in your case. Called a “masterpiece,” by leading plaintiff lawyers, Rules of the Road™ has helped tens of thousands of lawyers obtain six, seven and eight figure verdicts in difficult factual cases. Rules of the Road is the first in a trilogy of “must read” books for any medical malpractice lawyer at any experience level.
Also available as an audio book.
David Ball on Damages 3
Widely considered “the bible” of handling plaintiff personal injury cases. David Ball on Damages 3 is the second in the trilogy of “must read” books for medical malpractice lawyers. David Ball is considered by many to be the leading trial consultant for the plaintiff bar. Damages 3 provides specific instructions on how to handle every part of your trial, from voir dire to closing. Sample opening and closings are provided. The 3rd (white) edition of this book, contains substantially more information than the prior (red) edition, and is the only place where the concepts of the Rules of the Road™ method is integrated with the Reptile™ method of trying cases.
Also available as an audio book.
Winning with Stories
Using the Narrative to Persuade in Trials, Speeches and Lectures
Storytelling continues to be an important part of advocacy, and the best resource for storytelling in the courtroom is Jim Perdue’s Winning with Stories.
Beginning with an exploration of the story concept, Perdue analyzes narrative elements in detail, showing how to craft a story with a strong beginning, memorable scenes, believable characters, a logical plot, vivid action, and a moving conclusion. Going beyond these basics, Perdue demonstrates how to tell the story to maximum effect. Perdue covers mannerisms, physical movement, use of illustrative visuals, and other storytelling considerations in detail.
Winning with Stories is also an invaluable anthology of stories that speakers can use to make and illustrate a point. Perdue includes abundant examples of useful metaphors, similes, clichés, analogies, quotations, personal anecdotes, and humorous stories. He uses illustrative examples of actual opening statements and closing arguments the author has used to inspire juries to a winning verdict.
Winning Medical Malpractice Cases
With the Rules of the Road™ Technique
This book is a practical guide on how to use Rules of the Road™ specifically for medical malpractice cases. You need to read Rules of the Road™ first to understand the method, then use this book to address issues specific to medical malpractice cases. The book contains advice and practice tips from several of the nation’s leading medical malpractice lawyers, as well as annotated transcripts by the co-authors of Rules of the Road™, Patrick Malone and Rick Friedman, demonstrating how to use the Rules of the Road™ method in three separate medical malpractice trials (surgical malpractice/informed consent; birth injury; and wrongful death cases). With leading medical malpractice lawyers like Tom Moore, Joe Powers, Judith Livingston, Michael Koskoff, Charla Aldous, and many more endorsing this medical malpractice book, you know this one will help you improve the way you try medical negligence cases.View Details
Winning Case Preparation
Understanding Jury Bias
Jury bias can kill a medical malpractice case, no matter how good the facts and evidence. In the late 1980s, Greg Cusimano and David Wenner started investigating decision science and how jurors could fabricate excuses for malpractice (that had no basis in the evidence of a case) in order to avoid holding the doctor personally responsible. In the most famous of these early cases, jurors refused to give a verdict for an undiagnosed cancer because they either believed, 1) They would not have taken the negative diagnosis over the phone, or 2) they would have sought a second opinion after the doctor told the patient she did not have cancer. As a result of their ongoing jury bias research, Cusimano and Wenner created the Jury Bias Model™, helping plaintiff lawyers to better understand all of the unspoken problems that could result in an unexpected defense verdict. In 2005, Cusimano and Wenner joined lawyer David Bossart and trial consultant Edward Lazarus to create a trial consulting company called “Winning Works” that has developed a case preparation method that considers the potential impact of jury bias and other negative factors for a case from intake through trial. This system, used on cases obtaining over $4 billion in verdicts since that time, has been distilled into the book Winning Case Preparation. It helps you to know the potential types of jury bias that you face (or how to find them) and how you can address these during trial so that you disarm the jurors who will fight against the evidence during deliberation. This is particularly important in medical malpractice cases where you and your client are most likely to lose for improper reasons outside the evidence and law. Unlike most trial books based on psychological principles, this one is backed by evidence based research as well as anecdotal experience from focus groups and trials.View Details
Moe Levine on Advocacy
Moe Levine has been called “the Shakespeare of Trial Advocacy.” Unlike most of his contemporaries, this collection of closing statements, articles and lectures have not aged because the concepts contained in this book are timeless. Levine’s work is the origin of much of what America’s leading lawyers still do today, and you will find pieces of this book used throughout most of the great trial advocacy books that have followed. As an example, the concept of the jury as the “conscience of the community” was used by Levine in the 1940s. It is not a new, novel and objectionable “Reptile” concept as the defense would like the courts to believe.
With Levine trying over 2000 civil trials during his lifetime, there is wisdom in his words and a wealth of information in this book for dealing with nearly every defense theme you will ever face. That is why many of the most respected plaintiff lawyers in the country continue to borrow heavily from Moe Levine while trying large cases today.
This video, featuring Rick Friedman and Roger Dodd, walks you through a case from case intake to closing statements, hitting case critical techniques. Voir dire, without question the most important part of a medical malpractice trial, is handled in depth. Dodd, arguably the world’s leading authority on cross-examination, discusses his thoughts on constructive cross versus destructive cross, and Friedman addresses his very different method of “dynamic” cross examination. This video deals with more than just the issues within trial, but also address factors outside the courtroom that can impact how you try a case, the verdicts you receive, how to handle a loss, and your level of satisfaction with your career.View Details
Trial by Human
There is little question that Nick Rowley is obtaining some of the largest medical malpractice verdicts in the country presently. Recognized by many as a rare phenomenon in trial advocacy, Nick's books and videos will help you improve the way you perform in trial. The reasons Nick obtains large outcomes in medical malpractice cases are a combination of Nick’s approach “brutal honesty,” a different way of approaching voir dire, superior knowledge of the human body and medicine, fearlessness, and compassion for his client’s loss. But perhaps the most important thing that all medical malpractice lawyers can improve is their personal interaction with the client at their home so that you really understand and can discuss with the jury the impact of the loss that your client has sustained. Nick’s first book, Trial by Human, is focused on that issue. If you prefer video, this issue and many more are included in his video sets. In order of preference for medical malpractice cases, we suggest Connecting with the Jury, Nick Rowley at Take Back the Courtroom IV, and Jury Selection and Opening Statements.View Details
Grief and Loss
Identifying and Proving Damages in Wrongful Death Cases
If your malpractice case involves a death, there is no better resource for preparing and trying your damages case than Grief & Loss. This book originally came to Trial Guides upon the recommendation of trial consultant David Ball, who suggested it contained important ways to discuss damages in wrongful death cases. Written by one of the nation’s leading wrongful death lawyers, Robert Hall, and grief counselor Mila Ruiz Tecala, the book provides a much better understanding about what the family is going through, and will go through as a result of the death. Your client's losses are invisible, difficult to quantify, and often incomprehensible. This book instructs you how to communicate those intangible damages to the adjustor, a mediator or a jury. It also discusses differences in the death of a spouse, a parent or a child and how each of these types of cases must be handled differently. Applying the strategies in this book, you can show jurors (and other decision makers) that a family who experiences a death has not one loss, but a network of losses. This book will teach you how to convey to the jury and decision makers that a death in the family is the death of that family.View Details
Author Mark Mandell has a reputation of winning very difficult factual cases. Over a career of achieving multi-million dollar verdicts, he developed a method of case framing that he uses in medical malpractice cases. The method focuses on the issues of most concern to the jury – what he calls the “I just can’t get over” issues. Mandell discusses how to use his Case Framing method in motions, voir dire, opening statement, throughout direct and cross examination, and in closing argument.
This method helps you focus on the jury and what they need in order to ensure you provide it to them. It is intended to help you win in difficult factual cases.