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 fact of inadequate staffing; and (3) theparent’s budgetary directives, made in derogationof traditional parent/subsidiary relationships,resulted in understaffing at thetime of the incident. Absent appropriatefactual allegations supporting the requiredelement of proximate cause, a claim of a directparticipant liability will likely be subjectto dismissal.<strong>Defense</strong> counsel shouldpay special attention tothe required elementof proximate cause.Discovery ApproachesEven where the plaintiff’s allegations insupport of direct participant claims areinadequately pled, defense counsel maywish to bring a motion for summary judgmentinstead. In that case, written discoveryrequests aimed at revealing the lack offactual support for the plaintiff’s claimsshould be served without delay.Contention interrogatories asking theplaintiff to “state the complete factualbasis” for each separate allegation assertingparental liability, paired with a request fordocuments seeking production of “all documentsthat relate to or support” the plaintiff’sdirect- participant liability claims, canbe effective in demonstrating that plaintiff’sclaims lack a sufficient factual basis.If, as often happens, the plaintiff objects tosuch interrogatories as premature, overlyburdensome, or irrelevant, the point willhave been tacitly conceded. Requests foradmissions asking the plaintiff to admit ordeny that the plaintiff knows of no facts insupport of the direct participant liabilityclaims other than those alleged in the complaint,or asking the plaintiff to admit ordeny that the only documents in support ofsuch claims are those attached to the complaintor those produced in discovery, servethe same purpose.Because the burden of proof on claimsfor direct participant liability rests withthe plaintiff, summary judgment as tothese claims is warranted if the plaintiff22 n <strong>For</strong> <strong>The</strong> <strong>Defense</strong> n <strong>July</strong> <strong>2010</strong>is unable to come forward with admissibleevidence supporting each essentialelement of the claim. See Celotex Corp. v.Catrett, 477 U.S. 322–323 (1985). Where theplaintiff’s responses to the defendant’s initialdiscovery requests are evasive or lackreal substance, summary judgment maybe appropriate—even where the plaintiffargues that further discovery is needed—because inadequate responses may indicatethat there is no reason to believe thatfurther discovery is likely to elicit informationthat would defeat summary judgment.Getting an early jump on discoveryrelating to the plaintiff’s direct participantliability claims also serves to provide defendantswith strong arguments in supportof motions for protective orders againstcostly and burdensome discovery requestsdirected at multiple corporate defendants.Duplicative or overlapping discoveryrequests, including Rule 30(b)(6) corporaterepresentative deposition notices, althoughburdensome and expensive, may be difficultto prevent given the liberal scope ofdiscovery envisioned by the rules of civilprocedure. However, if defense counsel isable to demonstrate, via the plaintiff’s inadequatediscovery responses, that the factualunderpinnings for the direct participantclaims asserted against the parent andrelated entities are weak or non- existent,the Court may be inclined to agree that theburden of such discovery outweighs anylikely benefit.Proactive and forward thinking discoverymanagement is another tool forcombating the problems associated withcorporate parent defendants. <strong>Defense</strong>counsel should also consider pressing forhighly controlled phased discovery on theparent’s direct participation. It should notbe necessary to conduct all of the discoverythat might illuminate direct participation.Instead, an early phase should be limitedto answering the question whether thereis reason to conclude that a second, andmore robust, phase on this issue would befruitful. This may not be practical in everycase, but a premium should be placed onattempting to frame the discovery debateearly on rather than on responding to theissues as they arise. Moreover, in our experience,courts often respond more positivelyto a proactive and even-handed planthan to ad hoc discovery disputes.ConclusionPlaintiffs’ litigation groups throughoutthe country now recommend the use ofdirect participant liability theory in claimsagainst health care providers. This theoryis favored over traditional corporateveil piercing theory because it is viewedas easier to allege and prove. Assertion ofdirect participant claims creates burdensand challenges for the defense, includingincreased defense costs, obfuscation ofboth factual and liability issues, and susceptibilityto familiar and misleading argumentsabout corporate greed or “profitsover people.” However, these challengescan be managed if they are approachedwith care and forethought.<strong>The</strong> first step in minimizing the riskof exposure to direct participant liabilityclaims is to closely adhere to corporateformalities to avoid any appearance thata parent is mandating a course of conductfor its subsidiary in disregard of thesubsidiary’s interests. Careful documentationof the decision making process atthe subsidiary level, particularly in areasthat could affect the safety or the deliveryof care to patients, is critical. Dual officersor directors must avoid the appearanceof “wearing two hats” when engagedin subsidiary- related actions. <strong>The</strong>se measureswill minimize the likelihood thatdirect participant liability claims againstparents or related entities in the healthcare field will be successful.Where direct participant claims againstparent corporations are asserted, an understandingof the principles governing andlimiting direct participant liability is criticalin seeking their dismissal. Plaintiffsmust allege facts plausibly suggesting bothan eccentric level of control over the subsidiary,and specificity in directing the conductat issue. Traditional tort elements,such as duty and proximate cause, mustalso be properly alleged. A complaint thatbaldly asserts parental liability in conclusoryfashion should not survive a motionto dismiss.Even where parents are not dismissedat the outset, proactive and early discoverycan yield substantial benefits for thedefense and minimize the burdens, costs,and disadvantages associated with claimsagainst corporate parents.
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 WMalpractice JuryVerdictsBy Sue Seifand Thomas G. Leverage<strong>The</strong> Trial Lawyer’sDifferentialDiagnosisRetrospective analysis ofa jury’s verdict can help toidentify and select futurejurors who will possessreasonable health literacy.In trying to diagnose how a jury reached its verdict in aparticular case, we can engage in a type of differentialdiagnosis, although somewhat differently from how doctorsuse the technique. Instead of starting with multiple,possible causes for the patient’s symptomsand then ruling out those that are notproven, in the case of trying to diagnosewhy a jury reached a verdict, we start withthe verdict and then create a list of all thepossible reasons why the jury did what itdid. Our analysis rules in possibilities andour differential grows. How many thingshad an influence on the jury’s verdict andwhat was most important?Medical malpractice litigation is affectedby both internal and external factors inaddition to the medical issues of a givencase. Many of these are well known tothose of us actively involved in medicalmalpractice defense: changing insurer’spriorities and policies, efforts toward tortreform, venue, “likeability” of the parties(including counsel), defendants’ needs andconcerns—the list goes on. Most cases settleprior to going before a jury, but attorneystaking their cases through to verdictneed to consider a factor that has not gottenmuch attention from either the medicalor legal communities: health literacyand its communication. This article willexplain some of the learning theory behindthe problem and its evolving solutions, andgive defense lawyers a personal and practicaltake on dealing with health literacy,communication and your jury.A couple of years ago, I picked a jury inQueens County, New York, which has tobe one of the most diverse locations onearth. When we sat the first six jurors forquestioning, not one had been born in theUnited States. I felt like I was living thefirst line of a bad joke, “A German juror, aKorean juror, a Guatemalan juror, a Polishjuror, an Argentine juror, and a Thai jurorare deciding the case of an elderly Italianwoman suing a nursing home administeredby an Orthodox Jewish lady.” Ofcourse, it is my job to tell the carrier howI think the jury will decide the case….—tl■ Sue Seif, MA, CMI, is president of Seif & Associates Medical Graphics. She is a past- president of theAssociation of Medical Illustrators and past- chairperson of the Board of Certification of Medical Illustrators.Both authors are members of <strong>DRI</strong> and its Medical Liability and Health Care Law Committees. ThomasG. Leverage is a partner in the firm of Furey, Furey, Leverage, Manzione, Williams, and Darlington, P.C., inHempstead, New York. This firm specializes in defending high exposure personal injury cases, includingmedical malpractice.<strong>For</strong> <strong>The</strong> <strong>Defense</strong> n <strong>July</strong> <strong>2010</strong> n 23
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