For The Defense, July 2010 - DRI Today

M E D I C A L L I A B I L I T Y A N D H E A LT H C A R E L A WThe greatest challengefaces those practicingin jurisdictions that haveadopted some formof a relaxed causationevidentiary standard.science of causation. In the appropriatecases, defense counsel should design a discoveryplan that will build the case forsummary judgment When the possibilityof summary judgment seems realistic,depose a plaintiff’s causation experts withquestions tailored to the inquiries you willneed to explore to support your motionand to enable your experts and your clientto provide the testimony that supportsyour motion.Lawyers practicing in jurisdictionswhere the courts or the legislature havenot expressly addressed the loss of chancedoctrine should pursue a causation defensein such a way that develops information thatyou could use to undermine attempts bythe plaintiff to rely on the doctrine. Studythe cases in which courts have rejected theloss of chance doctrine and develop thefacts that will help attack the cases in whichcourts have supported the doctrine. Thispreparation will well arm defense counselto fight attempts by a plaintiff to introducethe doctrine to your jurisdiction in responseto your motion for summary judgment.The greatest challenge faces those practicingin jurisdictions that have adoptedsome form of a relaxed causation evidentiarystandard, but even in those jurisdictionspractitioners may prevail. One optioncounsel should consider outside of litigationis to address any unhelpful judicial rulingsby lobbying the state legislature for a changein the law. Most states have comprehensivestatutes governing the conduct of litigationin medical liability cases that have set upcase- screening mechanisms, standards ofcare for certain types of medical liabilityclaims, and damages. State legislatures have16 n For The Defense n July 2010historically shown that they are receptiveto controlling the manner in which medicalliability claims are litigated. Indeed, thecourt in Smith v. Bubak did not apply theloss of chance doctrine precisely becauseSouth Dakota legislatively abrogated thedoctrine after the Supreme Court of SouthDakota had adopted it in a prior case.What if the South Dakota legislature hadnot changed the law? Could the defensehave obtained summary judgment in Smithv. Bubak despite the loss of chance doctrine?Considering this question helps toillustrate ways in which defendants canattack the loss of chance doctrine with astrong causation defense.The first strategy for success is to challengean expert on Daubert grounds, asopposed to attacking causation head on,which allows a lawyer to use the scienceto undermine the reliability of the expert.Keep in mind that even the courts thatuse the loss of chance doctrine requirethat a plaintiff present reliable evidenceto establish that the plaintiff in fact losta chance of achieving a better outcome.And many courts that follow the doctrinestill insist that a plaintiff establish the lossof chance by a preponderance of the evidence.Thus, when defense counsel canestablish through cross- examination andexpert testimony that a plaintiff’s expertsimply got the science wrong, as in Smith v.Bubak, counsel’s strategy would be to challengeplaintiff’s causation expert througha Daubert motion and then move for summaryjudgment based on the plaintiff’s lackof medical expert testimony to support hisor her claim of a loss of chance for a betteroutcome.Your next approach entails identifyingthe holes in the loss of chance doctrine’snuances as used in your jurisdiction. Forexample, if your jurisdiction, as Massachusettsin Maruyama, has adopted the loss ofchance doctrine reasoning, in part, thatmedical science has advanced so much thata jury can estimate a patient’s probabilityof survival based on the medical evidence,defense counsel should consider whetherthe “probability of survival,” or “improbability,”was actually one of the reasons thatthe physician chose a particular treatmentoption. This focuses on whether the physicianmade a reasonable medical judgmentby choosing a treatment option in partbecause of the medical probabilities ratherthan on a causation analysis. Taking againSmith v. Bubak as an example, had defensecounsel confronted the loss of chance doctrine,he could have argued that the physicianconsidered that tPA outcome studiesestablished a low rate of improved outcomes,and in fact, demonstrated potentiallyworse outcomes, when exercising hisclinical judgment not to administer thedrug. Whether this approach is appropriatewill, of course, depend on the facts of acase, but defense counsel should search forways to use the rationales for the doctrineto benefit a defendant.Finally, even in a pure loss of chancedoctrine jurisdiction, where plaintiffs willbe able to ward off causation defenses atthe summary judgment stage, it may beworthwhile for the defense to consider amotion in limine that will work to containthe plaintiff’s claim. In a case with factssimilar to Smith v. Bubak’s, for instance,it would help the defense to obtain a courtruling prior to trial that would set the precisepercentage of a chance of a better outcomethat the jury would consider if thecourt determined that the case warrantedpermitting a relaxed standard of proof,and the jury would consider that proof.Defense counsel also could consider presentinga motion that would ask a court tospecify the formula to calculate damages ina case in which a plaintiff could only offerproof that he or she would have had a limitedchance of a better outcome if a physicianhad acted differently. The facts of acase may call for other motions that willhelp limit the ways in which the chance ofloss doctrine works to benefit a plaintiff.Limiting the scope of the doctrine in anyway possible aids your client by making themost of a difficult legal doctrine.Just as medical science can help patientsachieve better outcomes, it can also helpmedical liability defendants achieve betteroutcomes, particularly when the sciencesupports a strong causation defense.When you can use a causation defense toavoid the vicissitudes of a jury trial, defensecounsel should aggressively use it to defendtheir doctors. And even in those jurisdictionswhere the jaws of the loss of chancedoctrine have appeared to clamp down oncausation defenses, you should make everyeffort to snatch it back.