Litigation of Professional Malpractice

Lawyers, doctors, architects, psychiatrists, accountants and many others who have, through laborious studies, earned advanced degrees to provide sophisticated and diverse services to the public may one day have a common experience - the sobering experience of a malpractice lawsuit. In the past, writers have specifically analyzed some of the more predictable issues which arise in some of these specialized areas1; others have pondered whether individual reported cases represent the best or the worst examples of judicial tolerance. It therefore seems appropriate to reflect upon the responsiveness of our judicial system to professional malpractice.

Many Questions Raised

While some consider products liability and antitrust litigation as generally more technically complex than malpractice actions, in truth, the "professional suit" raises just as many legal issues and presents a very personal element which is absent from other litigation.

The attorney considering a professional malpractice action has to realize the unique challenge he or she must confront. These actions generally result from a service undertaking which went bad. It is almost always a "bad result" or the failure of a professional who set out to "help" the plaintiff. The "injured" party is usually some one with less education, sophistication and experience.

It is this disparity in knowledge which creates a unique opportunity for our judicial system to offer litigants a haven to correct injustice, and to provide professionals an open forum to establish the propriety of their action.

Most Suits Not Tried

The jury system, one of the final bastions of democracy, remains an illusive remedy for most litigants. A very small percentage of all professional malpractice actions are tried. Most of these lawsuits are either withdrawn or settled for much less than their potential value. And the great majority of malpractice suits pursued to verdict result in victory for the defendant.

Whenever a potential client presents himself or herself with an eye toward a malpractice action, counsel must be extremely cautious of this undertaking. These suits cannot be successfully litigated without a long and tedious study--both factual, scientific and legal-- and the outlay of substantial monies to acquire competent expert review. Even if counsel identifies legitimate action, recommending litigation must be seriously analyzed with a "risk benefit" formula.

Plaintiff's counsel and the client must weigh the potential financial benefit against such intangibles as: the commitment of time, lawyer effort, expense, litigation frustration, judicial (jury) acceptance or rejection, and the probability of success or failure. Equally important is counsel's view of the "correctness" of the action. Counsel must be sensitive to the very personal aspect of malpractice suit.

The stigma attached to a defendant in such litigation cannot and should not be ignored--just as jurors will factor this intangible issue into their deliberations, responsible plaintiffs' attorneys must consider the potential "wrong" in initiating a professional malpractice suit. Counsel should often use as a gauge the question whether he or she would be offended if an action were brought against counsel or a personal friend for a similar error.

In making the decision to undertake a malpractice suit, counsel must make every effort to employ competent experts in the same field of expertise as the potential defendant. A meticulous review of all available facts and documents must be made with a view toward verification of the client's accounting of pertinent events. And finally, a detailed analysis of the law applicable to the issues at hand must be factored into the "risk-benefit" formula."

A Different Approach

Our judicial system has rejected efforts at establishing procedures for the handling of a professional malpractice suit.2 Instead, these actions enter the same foray as other litigation. Yet, the personalization of this litigation warrants a different approach.

As counsel to plaintiffs, one should act early to depose the professional defendants, and due consideration should be given to such matters as: videotaping, the client's attendance, the expert's attendance, and the use of documents and demonstrative evidence.

It is often true that the success or failure of the defendant's deposition will dictate the lawsuit's outcome. The art of confrontation presented during a videotaped deposition by the attendance of expert consultants and the client can cause even the most sophisticated defendant to be more candid with his or her responses to questions.

Developing a "confrontation strategy," with established goals, allows plaintiffs' counsel to meet the complexities of deposing the professional defendant. Directness and deference to the deponent's interest in fully answering questions will allow for a well-structured examination. Counsel should pre-mark all exhibits, have copies on hand, and plan for the use of these exhibits with the videotape reporter. Often, the defendant's deposition will relate to information he or she provided to your client or his or her family. Thus, the interplay of the plaintiff and defendant's recollection, together with relevant documents, is an essential area of questioning. Counsel must certainly obtain the defendant's opinions of all relevant issues raised by the complaint or in a defense.

On the other hand, defense counsel must cautiously guard the defendant against answering hypothetical questions which do not relate directly to either existing documents or facts of record.

Usually a professional malpractice action involves the production of business or treatment records reflective of contacts between the plaintiff and defendant. The originals of these documents should be reviewed because they may reveal that entries were made in different color ink, suggesting either contemporaneous recordings by different entrants, or a subsequent "retrospective" entry.

Expert Consultation

Every professional malpractice action requires expert consultation, the answering of expert requests for discovery, and the presentation of experts at trial. Whether counsel represents a claimant or defendant, the selection of experts is a most critical aspect of any malpractice action.

One should choose a witness who by both education and experience can honestly address the varying issues presented. Often, more than one expert is necessary to deal with questions of due care and proximate cause. When litigants answer expert discovery inquiries they are faced with the competing demands of providing sufficient information to place their opponents on notice of the facts and opinions held, and minimizing the use of these written materials in cross-examination at trial.

The "art" of answering such discovery must be carefully pursued. An unsuccessful effort to minimize the communication can result in the court placing limitations upon the expert at trial. An exchange of expert depositions does not obviate the non-disclosure dilemma, because counsel routinely use expert depositions to argue that testimony then given should serve as a "cap" to trial testimony. The belief that an exchange of expert depositions will eliminate the objection at trial to non-disclosure is misplaced. There is a tendency to place so much reliance upon the predictability of an expert's trial testimony, based on a pretrial deposition, that it tends to serve as a barrier for expert elaboration.

Central Theme Not Needed

The trial of a professional malpractice action is the orchestration of diverse witnesses, including interested and disinterested fact and expert witnesses. As counsel prepares for trial, a central theme should be chosen so that jurors can hopefully relate to the "human" tragedy of plaintiff's injury or the harm of a defendant being unjustly sued.

Counsel should select exhibits which facilitate the lay person grasping the complexities of the trial. Remember the Journalism class adage: provide a conclusion, explain the basis for the conclusion, and then remind the reader of your conclusion. Every trial exhibit must be prepared so that it is easily understood either singularly or in context with a witness' testimony.

Every complex proposition must be redefined to a simple denominator. Often the use of multi-media formats, such as slides, photographs, illustrations and enlarged documents assists jurors and your witnesses in seeing and communicating more effectively. After all, the expectations of jurors accustomed to television and movie adaptations of attorneys and trials must be considered and, in some instances, satisfied.

The success or failure of a professional malpractice action is almost always dependent upon counsel's faithful adherence to the facts, and the effective presentation of your expert's analysis of the operative events.