For The Defense, July 2010 - DRI Today

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DRI—The Voiceof the Defense BarVol. 52, No. 7 July 2010PresidentCary E. HiltgenOklahoma City, OklahomaImmediate Past President Marc E. WilliamsHuntington, West VirginiaPresident-Elect1st Vice President2nd Vice PresidentSecretary-TreasurerExecutive DirectorR. Matthew CairnsConcord, New HampshireHenry M. SneathPittsburgh, PennsylvaniaMary Massaron RossDetroit, MichiganCharles H. ColeChicago, IllinoisJohn R. KourisDeputy Executive Director Tyler HowesEditor-in-ChiefManaging EditorEditorProduction ManagerSenior ProductionCoordinatorContributing EditorsAdvertisingRepresentativeDonald J. HirschJay LudlamMichelle ParriniJulia BergerudColin JacksonMarge MotluckCheryl PalombizioLaurie P. MokryFor The Defense, July 2010, Vol. 52, No. 7 (ISSN 0015-6884). Copyright ©2010, DRI. All rights reserved.Published monthly by DRI, 55 West Monroe Street ~Suite 2000, Chicago, Illinois 60603. Telephone: (312)795-1101. Fax: (312) 795-0747.Periodicals postage paid at Chicago, Illinois, and atadditional mailing offices. Subscription price is $65.00per year, and, for DRI members, is included in the membershipdues. Individual copies are $7.00 for DRI membersand $12.00 for non-members, plus postage andhandling.POSTMASTER: Send address changes to For TheDefense, DRI, 55 West Monroe Street ~ Suite 2000, Chicago,Illinois 60603.Correspondence and manuscripts should be sent tothe Editor.All views, opinions and conclusions expressed in thismagazine are those of the authors, and do not necessarilyreflect the opinion and/or policy of DRI and itsleadership.I N T H I S I S S U E1 On The Record2010 DRI Annual Meeting: I Hope It Is Not a CoincidenceBy Chuck Stewart, 2010 Annual Meeting Program Chair4 DRI NewsCharm City Plays Host for Mid Atlantic Meeting • Diversity ScholarshipsAwarded • DRI Calendar • Members on the MoveC E L E B R AT I N G 5 0 Y E A R S8 Education: The First PillarDRI—Its Law Institute and Its SeminarsBy Chrys A. MartinM 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 W10 From the Chair 36 Facing Prosecution and PrisonThe Challenge ofWhen Does Medical NegligenceChange in Health Care Become Criminal?By Philip L. WillmanBy Heidi A. Barcus and Eric Shen12 Let Medical Science Improve 39 The First WaveLegal OutcomesEmerging Trends in ElectronicPreserving SummaryHealth Record LiabilityJudgment as an OptionBy Chad P. BrouillardBy Thomas V. Laprade45 Coupling Evidentiary and Procedural Tools17 Defense of Corporate ParentsDefending Negligent Credentialing CasesManaging Direct ParticipantBy Thomas J. Hurney, Jr., Rodney W. Stieger,Liability ClaimsPhilip L. Willman and Angela E. PozzoBy Michael J. Griffin52 Typical Complications23 Malpractice Jury VerdictsEnforcing Arbitration AgreementsThe Trial Lawyer’sin Long-Term Care LitigationDifferential DiagnosisBy Brad W. Smith, W. Davis Frye and Brad C. MoodyBy Sue Seif and Thomas G. Leverage 57 Staying Out of the Rabbit Hole29 The National Practitioner Data Bank The Entanglements of AlteredHow Required Reporting CanMedical RecordsImpact Case ResolutionBy John Zen Jackson and Ann Marie VaurioBy J. Richard Moore and J. Bart McNielP R O F E S S I O N A L L I A B I L I T Y62 From the ChairGrowing Strong with BigPlans for the FutureBy Matthew S. Marrone64 Privilege and Work Product IssuesInsurers’ Retention of Outside CounselBy Scott D. Braun and Jenna L. Buda68 It DependsThe Ins and Outs of Attorney-Corporate-Client PrivilegeBy Shari Claire Lewis84 Writers’ CornerSimplicity, Faking, and Genius: Tips for Writing about Technical and Scientific TopicsBy Mary Massaron Ross85 Think GloballyFive Tips for Preventing Problems: Supply Chain Issues in the Global EraBy Christopher G. Campbell and Laura T. Vogel86 Defense Ethics and ProfessionalismProtecting Personal Information: What You Don’t Know Could Hurt You and OthersBy Diane M. Saunders92 Advocates and New Members74 When Is It Needed?Expert Testimony in LegalMalpractice CasesBy Jeffrey M. James78 Legal MalpracticeClaims Arising from Multiple-Defendant LitigationBy Susan E. Wassell
O N T H E R E C O R D2010 DRI Annual MeetingI Hope It Is Not a CoincidenceBy Chuck Stewart, 2010 Annual Meeting Program ChairI hope that it is not a coincidence that DRI President-Elect Matt Cairns asked me to chair the 2010 AnnualMeeting, October 20–24 in San Diego, during the veryyear that both DRI and I turned 50 years old. I hopethat Matt chose me to chair this meeting to permit meto demonstrate to DRI the important role that the organizationplays in my daily life and practice. This will beDRI’s 15th Annual Meeting, and I have made them all—except when trials stood in the way. For one half of mylife, I have been a member of DRI. I cannot even beginto count the number of DRI seminars I have attended—I won’t try. Turning 50 has had that deteriorating affecton my brain, and me generally. In DRI’s case, however,the chronological age has resulted in a great number ofgood changes. Over these past 50 years, DRI grew fromthe brainchild of a few brilliant visionaries into thelargest and most prominent defense organization specificallydedicated to the advancement of education, justice,professionalism, service, economics, and balance.The program, the setting, and the speakers for thisAnnual Meeting create a perfect beginning for the next50 years. On the first day, the opening speaker MarcusLuttrell, a former U.S. Navy Seal and the author of theNew York Times bestseller Lone Survivor, sets the tone.Luttrell’s story is absolutely amazing and very compelling.As a child, in his home state of Texas, he yearnedto join the Navy Seals. Luttrell ran thousands of miles,trained religiously, and was accepted into the Navy Sealprogram. For his efforts, he was sent into the mountainousregion of northern Afghanistan, near the borderwith Pakistan. Dropped into the mountains withhis team, Luttrell fought alongside his team membersand survived a frightening nightmare when his teammembers did not. His stirring, courageous story is filledwith examples of sacrifice, honor, patriotism, communityand destiny.Luttrell is not the only blockbuster speaker on theprogram. He is only the first. On the second day, SoledadO’Brien, CNN anchor and special correspondent,will share her tale of determination and hard work, valuesthat allowed O’Brien to reach the pinnacle of reporting.She strongly believes that education is crucial forour young people, and that mentoring keeps young peoplemotivated and hopeful. You will not want to missher speech.On Saturday, Mara Liasson, the award- winning journalistand national political correspondent for NPRushers in the third day, addressing the current politicalclimate, its impact on the legal profession, and policyissues facing the country. Her knowledge of the WhiteHouse, Congress, and politics beyond the Beltway causeNPR to call on her regularly for its award- winning newsprograms All Things Considered and Morning Edition.Matt Miller, brilliant author, columnist, and publicradio host, will speak at Thursday’s Awards Luncheon.A senior fellow with the Center for American Progress,Miller is a columnist for The Daily Beast and WashingtonPost, a contributing editor for Fortune, and the hostof public radio’s popular, political week- in- review program,Left, Right & Center. Miller’s speaking and writingstyle makes his insightful commentary a terrific, mustseepart of the Annual Meeting.Annual Meetings mean networking and entertainmentas much as they mean education and enrichment.This year’s Thursday evening off-site Networking Receptionwill take place on the deck of the U.S.S. Midway aircraftcarrier. One of the largest ships in the Navy, theU.S.S. Midway played a crucial role in the defense ofour country, as well as serving as the Persian Gulf flagshipfor Operation Desert Storm in 1991. Members andguests will be able to explore the ship, cross- examine thedocents on the history of the ship, walk under the wingsand props of aircraft, climb into fighters, and even tryout flight simulators. Refreshments and live music willawait us on deck, and we will have the run of the aircraftcarrier against the stunning backdrop of downtown SanDiego and the marina. I promise a truly special night.Of course, that will not be the only reception. The WelcomeReception will start off the meeting on October 20.Before walking into this culinary arts and wine experience,stop by the First-Time Attendees and New MemberReception and join the DRI leadership for a few minutes.On October 21, before being shuttled to the U.S.S. Midway,attend the Diversity Reception for delicious horsd’oeuvres and refreshing cocktails. The Young LawyersCommittee is the host of the Networking Reception onFriday followed by dine-arounds at some of San Diego’sbest restaurants. There is an Awards Luncheon on Thursdayand a Women’s Networking Luncheon on Friday.Finally, the President’s Gala and Installation Ceremonywill cap off the last day on Saturday. Great food and wineare not the only highlights of this event. DRI is havingits first Silent Auction and Saturday night is the finalOn The Record, continued next pageFor The Defense n July 2010 n 1
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