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7 Secrets about Medical Malpractice Law that Defense Lawyers Don’t Want You to Know

Defense lawyers don’t want you to know this. Too bad!  Here are 7 tips for making sure your next medical malpractice case is a winner.  

Secret #1: How to Determine a Physician’s Employer

You should always sue the individual doctor and the doctor’s employer, but in hospital cases, it can be difficult to determine the identity of the doctor’s employer.  First, go to New York State Department of Health’s “Physician Profile Website”, www.nydoctorprofile.com,  and enter “Practice Info” and then “Offices.”  Unfortunately, the information provided by the Physician Profile website is usually outdated or provides no meaningful information.

Next, do a Google search of the physician’s name, which might provide the identity of their employer.  However, in emergency medicine cases, that usually doesn’t work. Sounds crazy, but emergency medicine physicians are often unable to identify the name of their employer, even during sworn testimony at a deposition. So, what can do you?

Get the hospital’s billing records. The hospital’s billing records will identify the name of the emergency medical company that provides the emergency medicine physicians and/or intensivists to the hospital. The billing records will leave no doubt about the correct identity of the physician’s employer.  Hence, the billing records should always be requested in any case that you intend to sue.

Secret #2:  Who to Sue First in the Caption of the Pleadings

The first defendant in the caption of the pleadings should be the one who the jury will most likely find culpable. Easy enough, right?  Not so fast, my friend.

Juries are much more likely to find fault against a corporate defendant or hospital than an individual physician. Jurors empathize with physicians, but they have no sympathy for hospitals or corporate defendants.  For these reasons, the hospital or corporate defendant should be first in the caption of the pleadings. This gives your client the best chance of winning.

Secret #3:   How to Select the Best Venue for Your Lawsuit

In New York, you can sue a physician in the county of their primary place of business or residence.  If there are multiple physicians that you’ve sued, do a search of their places of business and residential addresses.  

You might find that one of the physicians moved away from the county where the malpractice occurred, and now resides in one of the boroughs of New York City.   You might have a venue in the boroughs of New York that is more plaintiff-friendly than Upstate New York. 

Secrets #4:  How to Find Medical Records that Hospitals are Hiding

Before you file a lawsuit, you must possess a complete set of medical records.  But this is not as easy as you might think.  A “certified” medical record only means that there is a meaningless certification attached to the medical records—by no means does it mean that you possess a complete set of medical records.

Here’s the secret: many departments of hospital keep their own set of medical records. 

Mental Health Records: If a patient undergoes a psychiatrist evaluation at a hospital, the mental health records are often kept in a separate electronic medical record (“EMR”) from the emergency department’s records.  You should make separate requests for the mental health records and the emergency department’s records.

Radiology Records:  If a patient undergoes radiology tests, the radiology department will have their own set of records, including a requisition request that are not part of the hospital’s medical records for the patient. Again, you have to make a separate request for the radiology records apart from your request for the hospital records.

Original Chart Review: How can you verify that you possess all of the medical records? There’s only one way: an ORIGINAL CHART REVIEW. Pursuant to section 18 of New York’s Public Health Law (and federal HIPAA law), you and your clients are entitled to conduct a review of the medical records at the hospital or doctor’s medical practice.  

At the original chart review, you compare the medical records that you possess to the hospital’s medical records.  The original chart review is the only way to find out whether the hospital did not provide you with a complete set of medical records.

Audit Trail:  The audit trail is a computer-generated record showing the date and time that every entry was made in the medical records and the substance of any changes. Under federal law, the audit trail is considered part of the medical records and you and your clients are entitled to it. Easy, right?  

But for some crazy reason, plaintiff’s lawyers don’t request the audit trail.  An original chart review and a discovery demand for the audit trail should be standard in all of your medical malpractice lawsuits.  In fact, you and your clients have the right to an original chart review and the audit trail BEFORE a lawsuit is filed. Why wouldn’t you exercise these rights?

Secret #5:  Videotape ALL Depositions of Adverse Parties and Non-Party Witnesses

Non-verbal communication (body language, facial expressions, pauses and communication between the witness and their attorney) is often more meaningful than the verbal testimony. If it’s not worth videotaping a deposition, the deposition is not worth taking.  Yet most plaintiff’s lawyers do not videotape the defendants’ depositions and non-party witnesses. This is truly baffling.

Why? There’s no good explanation. With virtual depositions, there is no cost to videotaping a deposition.  To videotape a deposition, you simply have to click “Record” on Zoom. Videotaping a deposition is simple and has no cost.  You only have to serve a notice of videotape deposition in New York (this should be a standard notice in all of your lawsuits).

Secret #6:  Never Adjourn a Trial or Deposition

Trial dates are equivalent to $ for plaintiff’s lawyers. You should be pushing to confirm trial dates for all of your lawsuits.

NEVER agree to adjourn a trial or deposition (with rare exception, e.g., a death in the family of a defense lawyer). Once you confirm a trial date, notify your experts, witnesses and clients and begin getting ready for trial. 

Secret #7: Put Expert Witnesses on a Budget

Many outsiders will tell you that medical malpractice lawsuits are prohibitively expensive. Au contraire, my friend.  A written budget for medical experts is the only way to control expenses in a medical malpractice lawsuit.

The major expense of a medical malpractice lawsuit are expert witness fees and this is where you’ve got to be careful.  When you retain a medical expert, forward the medical records and ask for an estimate of the time that they need to review the medical records. If the medical expert needs 5 hours to review the medical records and their hourly rate is $400, then you can set a budget of $2k for their initial case review.

 You should ask the expert witness to agree upon a budget of $2k in writing. If the medical expert needs more time to review the records than originally anticipated, they will need to get your approval in advance. If the expert exceeds the budget without your approval, you should remind them that they agreed to a budget and refuse to pay the amount of their invoice that exceeds the budget.

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Leave a comment below telling me what surprised, inspired or taught you the most (I personally respond to every comment). And if you disagree with my take on running a personal injury law firm, or have a specific, actionable tip, I’d love to hear from you.