Host Sean Harris talks with OAJ member, Megan Frantz Oldham about medical malpractice cases and how to be successful when selecting and taking on these cases.

Sean: Hello, I’m your host Sean Harris, this is episode 36 of Civilly Speaking brought to you by the Ohio Association for Justice. Today’s June 27th, 2018 and I’m here with our guest Megan Frantz Oldham and our topic today is medical negligence cases, Megan thanks very much for joining us here on Civilly Speaking.

Megan: Thank you for having me Sean. Lucky number episode 36.

Sean: 36. So when people hear about a medical negligence case, especially in the plaintiff’s lawyer community, I think there’s a perception these days that those cases are especially difficult. What does it take in your experience to be successful in a medical negligence case in Ohio these days?

Megan: First of all, thanks for having me and I think that general thought is very correct, that they are very difficult cases to win and medical negligence attorneys that do these cases on any sort of regular basis, me and my firm, it starts with how do you win these cases, it starts with case selection and it’s putting the time into when you get that phone call is this a case that our firm wants to invest literally hundreds of thousands of dollars into and that’s the very, very sad reality and it breaks my heart to say that, but these are expensive cases in terms of both time and effort that goes in by the firm and cost that the firm has to pay for expert witnesses. So the very first thing that you need to do to win is pick the right case and what we do is when we get a call in we, we look at the medicine, we get our nurse attorney to let us know if she thinks this is case that has some leg and then we meet as a team and we discuss the pathway to success and that includes what do we need the jury to find in order for us to win, in order to convince them that this medical provider breached the standard of care, what is the pathway to success and is that something that we think we can do and something that would be believable for the jury to get from a to z hearing all the evidence, do we think that they would believe it? So we look at what is the pathway to success. The other hard reality is we have to look at what the damages and what the injuries are. In Ohio, as you know Sean there’s caps on what you can recover for non-economic damages. So we have to consider what damages, if we take this case on and we invest a large amount of money and time into the case at the end of the day, what damages do we have that we can present to the jury and we think of what will the client look like when they stand in front of the jury, what will the jury see, what will we be able to tell them in terms of what this person went through, and we also have to look at who the defendant is. One case I just had recently was, it was against a political subdivision hospital and we faced even more difficult caps than we would normally. So we had to take that into analysis as to whether or not we took the case. The other thing we looked at was, is the client likeable. We meet with them face to face before we decide to take their case on. Is this someone that we think the jury will want to give compensation for against a medical provider and then we also look at, is there anything that the jury or the defense will blame our client for. Whether or not it’s not listening to the doctor or whether or not it’s failing to follow orders, any sort of delay in treatment, is that going to be a problem and if so how significant is it and those are all things that we look at in deciding whether or not this is a case that we want to take that first step of in reviewing medical records and getting an expert opinion.

Sean: You make a good point about the, unfortunately that the value of the case comes into play. I’ve heard some lawyers say, jokingly, although it’s not funny, that if you’re talking to your client in a medical negligence case, it’s not a good case because they’re still alive.

Megan: Yes, and you’re right it’s not funny, but there’s some truth to it and it breaks my heart to say that and I don’t have, our firm doesn’t have any firm stance that we will only take wrongful death cases, we only take paraplegic cases, we don’t have that fine hard line, but it is something that you have to very, very seriously consider when making the investment in that sort of case because those caps, they’ve been in place for a long time. As you know they haven’t increased at all since they were set in place so it’s a really hard analysis, but you have to make from unfortunately a business stand point.

Sean: And you also made a good point about looking at the defendants conduct and I wonder if there’s kind of recurring behaviors you see on the part of medical providers that when you see you say oh, that makes them unlikable that would get a jury fired up.

Megan: We always say ideally you have to win on something other than the medicine. That the medicine is not going to outrage the jury. It’s not going to get us to a plaintiff’s verdict. So, what is it about what happened that will really anger the jury and often times we see how they treated their patient, our client after the negligent act. Whether or not it was something that they said, something either disrespectful or really just heartless that the jury can latch on to or it’s any sort of evidence that has gone missing or been altered after the fact. A case I tried about a year ago, there was a run report from the primary defendant that they had filled out to provide to the EMS. They gave them one copy and we figured out that after the fact the copy that they retained had been altered. So, there’s a difference in information between what the EMS was given and the copy that they retained. And frankly there wasn’t a whole bunch of relevance to that in our case and proving actual negligence, but it really angered the jury that there was any sort of indication that things were potentially altered after the fact to try to cover up what they had done. So anytime you have anything like that and you have to really dig in. You have to dig in now to the audit trials when you’re dealing with electronic medical records, but if you can find out that sort of evidence that is often your pathway to success.

Sean: So, kind of following along the path of a case, you make the decision to accept the case, what’s the next step?

Megan: What we do is, we talk to the client. We say alright this is a case that we are willing to take the next step on, we think that there’s merit here. We’re going to take it. The next thing we do is obviously get an expert witness to review the case because in Ohio we have to have the affidavit of merit, followed at the time of the complaint or soon after and again we do our due diligence in finding an expert that we and our clients are going to spend money on and just getting someone that will give us a fair shake at the case. Not someone that is going to say whatever we want them to say because at the end of the day that does us no good. We need someone who is credible, who will stand up on their education, their experience, and their opinions make sense. So it’s getting an expert that we trust, that we think will give us a fair review and then once we talk to them it’s, I think often times attorney’s get excited when an expert says yes, I will support the case. I’ll sign the affidavit of merit, but that frankly shouldn’t be enough. You need to dig into the expert’s opinion and figure out how strongly they feel about the case. I think in retrospect I have taken cases where experts have signed the affidavit of merit, but I realized that they weren’t really gung ho about it and by the time we reached their deposition it shows and in order to carry the day to win these cases you need experts who are really outraged by what happened and are willing to be an advocate to the extent of telling the truth and why this is not acceptable care and if they can’t do that in their deposition and they can’t do it in front of trial, you’re going to have spent a lot of time and money on the case and not win. So it’s digging into that experts opinion, making sure that this is something that they really strongly support and that they’re going to stick with this case from beginning to end in taking that next step of actually filling the complaint.

Sean: That’s interesting, right? I’m guilty of that. Find an expert that is willing to check the box without as you say, digging in and so what’s the process there? Do you cross examine the expert?

Megan: Well yes, I mean I think you say you know this is what we think the defense are going to say, what is your response to that and it’s dealing with the weaknesses in the case and how the expert will address those and how strong or not strongly they feel about those defenses and if their concerned about it now, a year from now when you’ve spent a lot of time and money in the case are they still going to be concerned about it? So it’s something that you have to weigh. I think the other thing you need to ask the expert is, if there any sort of damages expert, figuring out from the beginning what damages, what injuries they will support or cause by the breach in the standard of care and that goes back to the analysis of caps and what is a jury going to see and what is the expert going to support, but you need to also figure that our early on.

Sean: Talk to us about the next step, of course being the discovery process and how you approach that.

Megan: I should add Sean that, we can talk about trial techniques and that’s for another time, but these cases are often won in everything that happens before trial and it’s taking a good case and then it’s properly investing your time and money into that case to set it up for success so that either it’s resolved beforehand or when you go to trial that this is a case that is really compelling to a jury that you have the evidence to anger them with respect to the medical providers care. So once we take the lawsuit, we have an expert to support it, we’re in discovery as best you can start out strong. Don’t file a generic complaint alleging generic breaches of the standard of care. I think the defendant will know that you’re not ready, that you’re not really serious or really excited about this case. If you file a generic complaint, if you serve discovery sixty to ninety days after you have filed it, it’ just generic discovery request. We as much as possible start out strong. We file specific complaints so that they know we have spent the time and we know this case we know what those breaches are and then we serve very specific discovery request, which include request for admission that can hopefully narrow the issues very early on. So it is letting them know that your series, but also making your firm focused on what the issues are so that you can get everything you need as soon as possible and as you know statute of limitations are an issue, making sure you have all the right defendants named and that’s your reason often times when they served my initial sets of discovery we say, we’re not going to give you an extension, we need this information in twenty eight days. One reason is we need to know everyone that was involved in the care and treatment. If we’re missing someone we need to now versus later. So that sets the tone for we want this information, we want it now. The other thing that we do is we make sure we have anything that could be relevant as soon as possible so if it’s cell phone records, which I’ve had an issue in cases getting those earlier than later. If it’s getting cell phones mirrored. You know so often times people text message people information back and forth in real time so if you have a patient whose been given a diagnosis and they’re being told x, y, and z by their doctor, did they text that information to anyone? That is a way for us to support what our clients are saying. So look at that, have the cell phones mirrored if you need to and do that sooner than later. It’s getting time lines from your client as we know the medical records do not accurately reflect most of the time what at least your client said was happening…

Sean: What? Are you serious?

Megan: Yes, it happens…

Sean: Oh.

Megan: all the time as you know. So it’s getting the timelines while that memory is recent for the client so getting anything that you think might be relevant now versus later.

Sean: And how about demonstrative exhibits in medical negligence cases. What is your approach to using those?

Megan: That goes back to the first step of when you’re trying to figure out what is the story you are going to tell the jury, what is the pathway to success and anytime you can illustrate any single point it’s going to resonate with the jury versus just using words and them having to listen to them. So what illustrations can we get that will make this story understandable? And get those illustrations early on. I think when I first started practicing we were like the week before trial and we were trying to get some illustrations from a medical company, which is great and luckily it ended up working, but why not get those early on to send the message to the defense that you are ready to take this to trial and use it with your experts. Have them use them during their testimony so they can use it to explain what happened and use it during mediation. Also let your clients know that you’re ready to go. So we try to, as best as possible, to get those illustrations sooner than later. I have just filed a case and we are working on getting the video of what happened with our patient right now because we think it will be useful during the entire course of the litigation and not just for trial.

Sean: By the way how was their video?

Megan: So, it’s not video, so what it is in the particular case is getting the CT images and having a video show what was going on during the period of time that the different CT’s were showing, were being taken to show progressively in video what was happening to our client’s brain. So yes, I would love a video of that.Sean: Actual video, right, right.

Megan: Right. Well we don’t have that, but it’s putting together either a video or an illustration so that they can see a trial I tried a year ago we had a video our client had sequel impaction that caused a bowl obstruction and we actually showed a video that the coroner tested was fair and accurate in terms of what he saw and what the mechanism of death would have been in his opinion. So it’s whatever company you use, whether or not an illustration is appropriate or if a video’s better to send that home to the jury.

Sean: Megan we talked about experts and obviously medical negligence cases are very expert intensive, what kinds of cost benefit analysis do you use in regards to experts?

Megan: We spare no expense. In order to win these cases you can’t nickel and dime these cases. It is if you think you need an expert, get them. Whether or not it’s a life care planner, an economist, a psychologist, any sort of expert to refute what the defense is saying, do it. I am very thankful that a case that we had, the defense was kind of throwing the fence against the wall in terms of an alternate theory that had killed our client, that to us wasn’t plausible, but they were going to try to convince the jury that he had a bad heart and that is what caused his death and at the last minute we decided to get a rebuttal cardiologist to come in and testify that that was not related to his death and it was alright do we want to spend the time, the money to do this when we really don’t think that this is a plausible defense, but we did it and I am so thankful that we did because I think that was one of the big reasons that we won the case was because our cardiologist came in and said, yes his heart was slightly enlarged, but that had nothing to do with the reason that he died, instead it was because of misconduct and it always reminds me to not spare expenses when this is already a case that you have invested so many resources in you can’t just try to get by with the standard of care and a causation expert, otherwise there is a good chance that you will lose. You need to have the other experts to refute what the defense are saying and to build up what your damages are so I highly recommend if you think you need that expert or if it crosses your mind, get it.

Sean: Well Megan Frantz Oldham, it’s been a pleasure. Thanks very much for joining us here on Civilly Speaking.

Megan: Thank you for having me Sean, it’s been a pleasure.

Sean: And thanks to all our listeners. If you like our show and want to learn more check out or leave us a review on iTunes. See you on the next episode of Civilly Speaking.