Pursue? Defend? Settle? Drop?

Case viability analysis crucial to prevent costly decision errors
By Charles A. Pilcher MD FACEP
July, 2015

“Charles, making decisions is easy. It’s getting the information that’s hard.”

These words from my father have stuck with me since I first heard them decades ago at a crucial decision point in my own life. They are particularly appropriate when deciding how to deal with a potential plaintiff with perceived or actual harm and a possible med mal lawsuit. They are equally important to the physician and his/her defense team when deciding on the appropriate response when something doesn’t go as planned.

For a potential plaintiff and his/her attorney, the wrong decision will just complicate what is already a complicated situation. A wrong decision will do little but increase the patient’s/family’s anxiety, anger and misery. The phrase “adding insult to injury” is fitting. As a well-known plaintiff attorney once said, “Every patient who comes to me has already had a bad medical outcome. The last thing they need from me is a bad legal outcome.”

For the defense the approach is similar. The vast majority of cases are clearly defensible. Hopefully, good review by an objective plaintiff expert means they never even get filed. In a few cases a mistake is unfortunate but obvious. Most fall into a gray area where the proper course of action is less clear. The malpractice insurance carrier wants to minimize cost. The physician wants to preserve his/her reputation. The defense team wants to assure the best outcome for their clients. (The latter are also the only ones guaranteed of getting paid, regardless of the path chosen or the eventual outcome.) For everyone else the cost is often huge. A prolonged defense of a case, especially if eventually lost, takes an immense emotional, relational and time-sucking toll on the involved practitioner(s).

This is where a thorough “case viability analysis” plays a critical role.

Perhaps the most satisfying thing I have done in my 35+years providing expert review to both plaintiff and  defense attorneys is to present cases through the eyes of opposing experts and counsel. In every case I ask myself, “Having looked at these records, whose side to I want to be on?” Is there really any evidence of negligence? If so, was the eventual outcome affected (causation)? What were the damages? And how are these all related?

Further, if I am the plaintiff expert, how will I rebut the defense expert? If I am the defense expert, how will I rebut the plaintiff expert? If I were a lay person on a jury, how would I react to the allegations being claimed? Would I believe the doctor? Would I sympathize with the patient?

This sort of “case viability analysis” is critical to the proper evaluation of the merits of a med mal lawsuit and I enjoy doing them. I have found that plaintiff attorneys are often caught up in the patient’s version of what happened, which the records may or may not support. I have also found that insurers and defense attorneys too often assume that nothing could possibly have gone wrong. Only a good “case viability analysis” can parse out the best course of action, because a decision to aggressively pursue or defend a med mal lawsuit is one that commits a large number of people to a multi-year emotional roller-coaster ride at great expense and with almost none of the thrills.

As my Dad taught me, making “easy decisions” is only possible after an unbiased, objective, impersonal review of all of the available facts or “information,” difficult as that may be to obtain. That’s a “case viability analysis” and I love doing them.





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