Host Sean Harris talks with OAJ member, Marc Pera about medical negligence claims. Specifically, they discuss the rising number of nurse practitioners and their involvement with treatment, discrediting defense experts, and Robinson v. Bates.

Sean: Hello, I’m your host Sean Harris and this is episode 40 of Civilly Speaking brought to you by the Ohio Association for Justice. Today is June 27th, 2018 and I’m here with our guest Marc Pera from Cincinnati. Marc, thanks very much for joining us here on Civilly Speaking.

Marc: Thank you Sean. Good to be here and enjoy listening to your radio voice.

Sean: Thank you. I’ve been working on it. So, our topic today generally is medical negligence claims in the state of Ohio and I know you handle your fair share of those, tell us what you’ve seen for example as far as nurse practitioners and their involvement with the treatment these days.

Marc: Yeah, I think one of the most disturbing trends that we’re seeing is the use or maybe even overuse of nurse practitioners and for those who don’t know, nurse practitioners are nurses who get additional education and they’re then allowed to practice similar to a physician, but they’re supposed to do so under the supervision and oversight of a physician and what we’re seeing is that nurse practitioners sometimes are used very well in family doc offices sometimes in emergency rooms where they’re seeing lower equity types of patients or patients that don’t have significant illnesses, but the alarming thing that we’re seeing is that they’re being put into places and seeing patients where you don’t know what you don’t know so to speak. In other words, they may think that it’s a lower equity patient and in reality, it’s someone who is very sick. We’ve got a case right now, set to go to trial later this year where it actually involves two nurse practitioners on two separate visits. Our client was a young mother in her thirties, at least that still seems young to me, but in her thirties, mother of four, married, and she went into an urgent care after church on a Sunday and was not feeling well and they basically diagnosed her with headaches, sent her home with no medication, went home, came back in, it was either the next day or two days later saw an urgent care in her family doctors practice and this is all part of the same health care systems so they have, the files and the medical records available to one another see that nurse practitioner and was much of the same even though when she was in there her oxygen levels had dropped below normal levels and they’d been normal at the previous visit. Even though her blood pressure was now low, she was hypertensive. Even though she had tachycardia, fast heart beat on this visit, they ended up diagnosing her with a cluster headache and sending her home. The only thing they tested for was the flu and she passed that flu test. Well the end of the story is that the following day she comes back to the emergency room this time via ambulance and by this time she’s so septic that she’s not salvageable. She actually had pneumonia on both of the visits and according to the defense expert and you may get a kick out of this at least one defendant’s expert said that when she was being seen by the nurse practitioner on the second visit that she was no longer salvageable you know no matter what they did treatment at that point she was not going to survive. There other expert though is opining that it was okay to just diagnose her with the cluster headache and send her home so you’ve got one saying she’s so sick that she’s not going to make it no matter what you do and you’ve got the other one saying it was okay to miss it so we’re seeing cases like that and I’ve got another one that involves meningitis with a number of emergency room visits, all of them being handled by nurse practitioners, and again it’s just kind of you don’t know what you don’t know. They’re going in there, they’re assuming it’s just regular neck pain and in reality, in that case it’s again a young woman, young mother in her twenties that actually had a spinal epidural abscess which developed into meningitis throughout the continuum of all these visits and they’re simply thinking she just has a stiff neck and nobody’s doing any further investigation, they’re not recognizing that there are signs they should be following up on and there’s no real supervision from a doc that’s preventing tragedies from happening so I think on the one hand you got nurse practitioners that are potentially making medicine a little more affordable in reality what’s probably happening is it’s just making it more profitable for the hospitals and hospital systems and there are positives to that decrease cost, but the real negative and real danger that we’re starting to see with alarming frequency is that they are treating these nurse practitioners as if they’re physicians and they’re not. They don’t have the schooling, they’re not going for four years in medical school. They’re not going through a residency, a fellowship, you know the things that all the physicians are all doing and because of that I think the quality of care is really being compromised.

Sean: Well and it’s remarkable when you know, when you say these people are going to the emergency room. It’s not like they’re going to their family doc. They’re going to the right place, that can’t be right.

Marc: Exactly and in fact you know those two cases that I just gave illustrations of you know it involves ERs on multiple visits. It involves urgent care and it involves the family doc. They’re being used everywhere, they’re being used by the obstetricians. They’re seeing women that are coming in, in the early stages of pregnancy. Luckily, we haven’t had any cases where it’s been a nurse practitioner that has committed a horrible mistake or error in following you know a pregnant, pregnant mother, but I know they’re being used with great frequency there as well. I mean really, they’re creeping into every facet of the medical practice, the medical world.

Sean: Well you mentioned defense experts earlier, talk to us about dealing with defense experts and the importance of discrediting them.

Marc: In the last six months I’ve tried two medical malpractice, medical negligence cases in Cincinnati both against the same lawyer, a very good lawyer, has become a very good friend and he does a really, really nice job and I can tell you in the first trial, which did not end the way it was supposed to end. He had two experts and the first expert took the stand and this was a case involving the death of a baby and it was a case where a C-section should have been recommended, at a minimum recommended if not required hours and hours before it was finally suggested by a nurse. It involved really a doctor that was not a good witness at all. They didn’t even call him back in their case in chief on redirect, they didn’t bring it back to the stand because he had done so poorly, but it was a case where there was no literature and there wasn’t any literature because you wouldn’t subject any laboring mothers to a study where you say all right you’ve had a failure to progress in your labor, in other words, you’ve halted, you’re not dilating any further, but we’re just going to have you keep pushing and pushing until your uterus bursts. You’re just not going to have that type of study done so there’s no literature in terms of what the specific risks are as you go beyond three hours with a failure to progress, four, five, six, in this case it was close to twelve hours. So, there was no literature you could really use to impeach the experts. Well the first expert that they called on the stand was a well-known obstetrician, had written a lot, from down south had a little bit of a southern draw and you know tried to play it up with the jury and be very charming and quite frankly he was. He just kept lying and you know you can’t stand up and say hey you’re lying because nobody’s going to believe you over the doc, but I felt somewhat comfortable because I thought alright even though he’s just absolutely lying about this stuff I’ve got their next expert coming up and I should be able to impeach the first guy through the second guy. Well as you might suspect not only did they not recall their doctor, defendant doctor to the stand, but they did not call that second expert to the stand either which was a smart move on their part. So the jury was left with two very different stories. One from our expert and one from their expert. Their expert had better paper. He had been published over and over like I said. Had been the president of ACOG and a president of other OB organizations and you know at the end of the day, jury was out, well they were out eight hours, came back and said they were deadlocked and this truly was a case we should have won. The defense lawyer was begging the insurance company to come up with more money and was really worried about what the result was going to be, but the judge sent it back after the deadlock and as a side note never leave a criminal defense lawyer on your jury because they went back and this criminal defense lawyer who I thought would be good because I figured he would be liberal, which he is, went back and absolutely crucified our case and got a couple of folks to flip over. It was a four four split at that point. He got two to flip over and we lost six to two. So, and speaking with him afterwards it sounded like they simply thought that that defense expert because of all of his articles and the training that he had was a better expert than the one we had put forth and it was just really very frustrating. So, the last trial I had against the same lawyer he had a number of experts again which we see, in pretty much every case they’re just doubling and tripling up experts and going with the one you know is doing the best in depositions. I figured that he was going to probably try to call a number of them and so in opening there was one in particular that had given very favorable statements and favorable testimony that conflicted with the other, at least two of the other experts that he had listed. So, in opening I went to play the video of those experts which I’ve done in the past, but I got an objection and in spite of what the role says you can use depositions for any purpose under the roles of evidence. The objection was sustained. None the less what the judge allowed me to do was to summarize the testimony from that expert. So, I used the transcript and then basically in front of the jury so they could see that it was coming straight from this deposition. I basically said hey you know expert, doctor blow is going to tell you a, b, and c and then talk about how that conflicted with what they were going to hear from their other experts and throughout the course of the trial the other experts they called really did a poor job. They changed their testimony. They just weren’t believable at all and that one came back and the jury got that one right unlike the first case so it’s one of those things we all know that if you can discredit the defendant’s experts you’re obviously going to be a head of the game but I can tell you in that trial by the fifth day or so of trial when they put their experts on and they tried to change their story’s the jury had had enough. You could see them visibly shaking their heads, making faces, and crossing arms so if there’s no literature out there to beat folks up on and they’ve got multiple experts maybe just another reminder to those of us that do this in any type of case with experts that hey we can use these depositions, most of the time we can use the video with more lenient judges, but even if you can’t there’s ways to get in that testimony to show that they’ve got inconsistencies and really you’re not going to be believable in the case.

Sean: I never understood the objection that you can’t use a video deposition in opening when the juries going to see it anyway.

Marc: I don’t get it either. Now the video depo was not a trial depo. It was a discovery depo, but I agree with you because if they deviate from that testimony you’re going to play it and impeach them and they should be seeing even if that witness is coming live they should be seeing the exact same testimony if they are being honest. So, I don’t get it either and normally I don’t even get an objection on it. I think in this case I got it because he knew that he had trouble with some inconsistences among his experts and he wanted to try and keep it out. Actually, when he had his other experts on the stand I then got the deposition in through them also when they would give their testimony. I was going back and saying well do you know that doctor blow you reviewed the depositions in this case yes you were careful in your review yes did you see doctor blow said x, y, z and I was able to do that over objection. The judge let that in so I think there are ways to get it in even if not in opening it was crucial for that case that we do it in opening and it’s always nice when a defense gives you a gift with experts who not only lie, but they at least lie inconsistently with previous testimony and then we’re able to do something about it. When they just plain lie it’s a little bit more difficult.

Sean: And you’ve been talking obviously medical negligence cases here, generally and obviously these are can be devastating cases where you’re helping folks through and I think sometimes we tend to get focused on the business side of the practice as compared to the professional side and it’s a good reminder to go back every once and awhile and consider or think about what cases you feel strongly and feel passionately about.

Marc: I agree Sean and I just had an experience where it luckily paid off in the long run not only for me but for a client and his family. It involved a terrible brain injury for a little boy and there are some pretty strict confidentiality strings attached to the settlement that we were able to reach, but what I can say is it was a case that came in and involved a recreational activity that I got boys that are involved in. It involved an injury that is happening a lot and going back to the early nineteen hundreds the Ohio Supreme Court had basically said there’s an assumption of risk if you are injured at one of these events and there’s just nothing you can do about it through the civil justice system and you know it just didn’t sit right with me. There had been other attempts in some other states to try and change things and those had failed, but I thought we had a decent set of facts in this case the kid was so horribly injured, I mean he really is screwed for life that I thought, you know what I feel strongly about this I’m going to take a flyer on it and I really kind of expected to lose two years’ worth of time and twenty to thirty grand in expenses, but I thought hey let’s take a chance and luckily we got a good draw with a judge. We got passed summary judgement, which I think is the first case of that kind to get pass summary judgement with the facts that we had and then the insurance company said let’s go mediate and see if we can get the thing done and luckily we were able to do it in such a way that this kid really is going to have financial security for the rest of his life even though he’s going to have a very poor quality of life compared to what he would have had he not suffered this terrible injury, so yeah I agree with you it’s good to be reminded that every once and awhile if we feel strongly about a case even if it’s outside our normal sweet spot in terms of what we handle. Every once and awhile things work out and we get the right judge we get the right set of facts and we do it passionately enough that sometimes we can change the law for the better and even better help one of our clients as we all represent that have had something horrible happen to them so yeah that was a good reminder, good reminder for me. It’s refreshing to get a decent result on it when I really thought that we didn’t have much of a chance at all but just felt strongly about the issues. So it was a fun case, it was a fun case to handle and it certainly was a surprising and very gratifying outcome although I will say another reminder to all of us who do demands and send out those letters and we get those economists, life care planners, and everyone else involved, I tell you what no matter how much I try and counsel my clients not to believe that number that I put out there and no matter how much I tell them to not to pay attention to what the economist is saying and maybe what the life care planner is saying. They still take hold of those numbers and I’ll tell you that, I really had some terrible client control problems going into the mediation at mediation and even after we had settled following the mediation in terms of her you know wanting to kind of blow things up even though we had achieved what I thought was really an incredible result so a second lesson in there I guess for all of us that start with that client control from the beginning and I had with her and I told her that in all likely hood we would lose and then you get this great big pile of money on the table and suddenly they forget all the stuff you’ve been telling them so a couple of hopefully a couple of reminders for all of us on cases like that.

Sean: Yeah, I think I was absent the day in law school when they covered managing client expectations.

Marc: Well I tell you what it’s, it’s so nice when you’ve got in the majority of them, it probably your experience to, the majority of them are so thankful they’ll do exactly what you say no matter how much you tell them it’s your call I’m just giving you the advice you know here are risks, here’s the range, etc. Most of them say what do you think and then they follow you advice, but you do the same thing with others and my goodness there’s nothing you can do to sometimes get through to people.

Sean: As soon as I figure out how to practice law without clients I’ll let you know.

Marc: That’s exactly right.

Sean: Right. Turning from good legal development with your case and a surprise successful result to maybe a bad legal development that being Robinson v. Bates and anybody who does any kind of injury work knows it is the bane of our existence. How do you deal with presenting medical bills in trial and medical negligence cases?

Marc: I think medical negligence cases are unique for the Robinson issue simply because we’ve got doctors on the stand at least in most cases we’ve got doctors and not nurses, but we’ve got doctors on the stand who have billed for their work and I can tell you that you know I’ve yet to go in on a case and sometimes I choose not to introduce the bills at all because of anchoring reasons and I don’t want a small number in there but when that number is bigger I can tell you that every single time I have asked a physician about whether or not the bill is reasonable and I’m talking about the amount they’ve billed they all agree to it because what are they going to say they’re over billing, that they’re unreasonable in terms of what they’re charging. They can’t possibly say that and then I’ve even taken it a step further with them and said I understand that sometimes you accept a lesser amount and I’ve actually gotten into it in some trials where I brought up from Medicaid or Medicare where we had circumstances that’s all over the medical records you’re going to white all this stuff out. People are going to surmise that they’re on Medicare anyway and I’ve taken it a step further and said if anything the reimbursement you get from some of those carriers is unreasonable and they will of course agree with that because they can’t stand how little they’re reimbursed on the bills and I can tell you that we have in those medical negligence cases where the jury is going with us, which unfortunately is not all of them, but when they are going with us and we are getting positive verdicts in our favor I can tell you that usually what’s come with it on the medical bill side has been the amount billed as oppose to the Robinson number and we’ve really done more of a soft sell on it and the defense hasn’t touched it much after they’ve had their doctor really endorse that their bill is reasonable and that if anything it’s those other, lesser amounts that they accept that are unreasonable so again just for those who do medical negligence I think it’s a different world than the regular injury world for the Robinson debate. Maybe a little bit more difficult to take that tact with non-defendant docs because I know the DME docs just say I don’t know, I don’t do the billing, you’ll have to ask my office manager, but I think it’s a little bit different in that context, but it’s worth at least considering because I don’t think we have to in the medical negligence world simply give up on the amount billed versus that Robinson number.

Sean: Well Marc Pera, it’s been great talking with you. Thanks for joining us here on Civilly Speaking.

Marc: Thank you Sean. I had a great time.

Sean: And for all our listeners out there if you like the show please check out and we’re also on iTunes, leave us a review, we appreciate it very much and we’ll see you all next time on the next episode of Civilly Speaking.