Risk Management

Choosing Defense Counsel

By Mary Kasher, MSN, JD
OMIC Claims Manager

[Digest, Winter 2001]

You have just been sued for malpractice. Who would you want as your defense attorney through the legal quagmire that is sure to follow? Would you look for the attorney with the best win record? The one who practices at the biggest and best known law firm in town? The one with the most courtroom experience? Charisma and eloquence?

All of these factors should be taken into consideration when looking for the most qualified attorney for your case. In addition, OMIC has a few more requirements before an attorney can become part of our defense panel and ultimately your attorney. As in many professions, the legal profession is divided into specialty areas, each of which defines a specific scope of expertise; for example, there’s insurance defense, workers’ compensation, corporations, mergers and acquisitions, real estate, and of course, medical malpractice. It is important that an attorney be selected whose primary focus and experience is in medical malpractice.

Prior Ophthalmology Experience
OMIC chooses its defense counsel very carefully. First, we look or defense counsel with strong medical malpractice litigation references from the local legal and insurance defense community. All OMIC cases are assigned to a senior partner with at least 10 years of medical malpractice trial experience. The partner directly assigned to the case must have ophthalmology case experience and, in most instances, have taken ophthalmology cases to trial.

The first phase of any medical malpractice case is to determine the insured’s potential liability and what part he or she played in the overall medical care picture of the plaintiff-patient. The ability of defense counsel to understand ophthalmology at this fact-finding stage is crucial because it is at this stage that the ultimate direction of the case is determined. For example, if counsel already understands what cataract surgery entails and knows its potential complications, it will be much easier to spot the issues and categorize them according to impact. This is why OMIC makes every effort to locate attorneys with ophthalmology experience an then continues to educate and groom them in the language and application of ophthalmology. Each time an OMIC attorney handles an OMIC case, his or her knowledge base grows and the attorney becomes more effective in managing OMIC cases.

OMIC has developed Ophthalmology Learning Modules for attorneys in several subspecialties, including cataracts, cornea, glaucoma, endophthalmitis, oculoplastics, vitreoretinal, ROP, and ophthalmic anesthesia. These modules and literature searches through the archives of the American Academy of Ophthalmology and other resources provide attorneys with the necessary background information to understand and focus on the primary clinical issues presented in each case. The insured ophthalmologist also plays a large role in educating defense counsel in the specific medicine involved in his or her case and continues to assist and analyze the issues as the case progresses.

In the initial stage of a claim, the defense counsel’s reputation in the community is extremely important, particularly when OMIC is trying to resolve the case with the plaintiff’s attorney and avoid going to trial. It has been OMIC’s experience that plaintiff attorneys are more willing to listen to and negotiate with the defense team when it is presented by a law firm known for its ability to win at trial. It is also good strategy for the OMIC Claims staff to team up with defense counsel to present a strong united front when trying to dissuade the plaintiff from pursuing a nonmeritorious claim.

Strong Courtroom Presence
Approximately 95% of malpractice cases never go to trial; however, should your case get that far, you will need an experienced and skilled attorney to represent you. It is important for a trial attorney to be able to relate to and develop a rapport with both the judge and jury. The attorney must be sufficiently conversant with the clinical facts of the case to present them clearly and succinctly to twelve lay individuals who may not have any medical background. Often, the attorney must walk a tightrope when explaining complex medical concepts to jurors to avoid talking over their heads without being condescending. It takes years of practice to develop this skill and to be able to successfully maneuver a case through a trial. Unexpected delays or continuances, surprise witnesses, sympathetic plaintiffs, and ever-menacing plaintiff attorneys can sabotage the most carefully prepared case at any moment. A skilled leader is absolutely essential at the helm.

Defending a medical malpractice case requires a team effort and the combined skills and experience of defense counsel, the OMIC Claims Committee and staff, and the insured ophthalmologist to develop and carry out a winning strategy.