Care Needed When Naming Med-Mal Defendants

Published: 1:00 am Mon, August 17, 1998

By Eric T. Berkman Massachusetts Lawyers Weekly

Extreme caution is required when naming defendants in medical malpractice cases, according to lawyers in the field.From a strategic standpoint, naming the hospital or HMO can benefit plaintiffs in obtaining discovery but can give the jury a party to blame other than the doctor — a party that may have limited liability under Massachusetts law.“The only reason to bring in a hospital is to make sure, in many regards, that you get all the medical records,” said Boston lawyer Fredric N. Halstrom. “The insurance company would rather have the jury focus on a $20,000 defendant than the other defendants [for whom a large verdict will not be reduced]. It appears they’ll willingly take a dive for the hospital, knowing that the jury will never be told about the $20,000 cap.”In addition, med-mal lawyers must walk a fine line between their duty to give their client every opportunity for full compensation and their duty to limit the named defendants to those whom they believe in good faith to be negligent.Lawyers agree that the decision of which parties to name as defendants requires extensive pre-suit investigation of all potential defendants, as well as their relationships to each other and to the plaintiff, and the evidence of their culpability.“There are always tactical decisions that need to be made,” said Boston lawyer Robert W. Casby. “In the first instance, you have to determine who the responsible parties are. … But unless it’s been determined from your pre-suit investigation that [a potential defendant] deviated from the standard of care, he or she shouldn’t be named. It’s unfair to them and to your client. You’ll end up in trouble with the med-mal tribunal and will have to post extensive bond.”Practitioners experienced in medical malpractice also emphasize the importance of:

  • avoiding a “shotgun” approach to naming defendants;
  • investigating legal relationships between entities involved in the chain of care; and
  • taking into consideration the amount of time remaining under the statute of limitations.

“This is all something we’re confronted with all the time,” said Sharon attorney Robert A. Shuman. “Making a decision as to whom you’re going to name as defendants, being mindful of the ethical considerations versus protection of your client. That’s the rub, but I think attorneys are confronted with those decisions on a daily basis and try to do their best.”

Hospital Issues

According to Shuman, the first thing an attorney must do is make a complete investigation as to who might be legitimately responsible in a med-mal case.“I have a responsibility under the ethical rules to make sure that the persons I’m going to name are people whom I have a good faith basis to believe were negligent,” he said. “I’d hope that any attorney would do that first.”After that, said Shuman, the biggest decision is whether or not to name a hospital as a defendant.“The downside of this is if the hospital is left in, a jury could render a verdict against the hospital because they want to avoid rendering a verdict against an individual doctor or nurse,” he said. “For some reason they’re thinking that a plaintiff will be well-protected by a verdict … when in fact they don’t realize that the plaintiff is left with $20,000 rather than the $300,000 or $400,000 it awarded.”But Leonard A. Simon of Boston pointed out that there can be advantages to naming hospitals — at least at the outset.“One advantage is that it aids in discovery,” he said. “But as a general rule, I wouldn’t want to allow the case to go to a jury against a hospital unless the jury would have to conclude that the only way the hospital is negligent is as the employer of the individual party. That way there would be little or no risk of a successful claim against the hospital only, without the employee also being found negligent.”Douglas K. Sheff of Boston added that “a lot of people bring in the hospital [to obtain more complete discovery at the outset] and then drop the hospital before they go to the jury.”Halstrom, however, observed that this can be a dangerous strategy because sometimes the judge won’t allow the plaintiff to drop the hospital as a defendant.“And you also run into the incredible situation that a defendant is arguing that they do have some liability and therefore they should remain in the case,” he stated. “That’s an argument that nobody would make in any other type of case.”Stephen J. Lyons of Boston acknowledged the hazards of naming hospitals as defendants, but said that the traditional rule of leaving them out may be changing.“There are several private alliances of hospitals which used to be charitable organizations which, upon closer examination, we’ve determined to be more commercial in nature,” he said. “So the rule we used to apply to charitable organizations we’re no longer following. And that rule will, I think, give way more and more as the revolution in health care and gravitation toward managed care begins to force changes in traditional charitable hospitals.”The view of the plaintiffs’ bar toward HMOs — which attorneys have generally left out for the same reasons as hospitals — may be changing as well, said Simon.“Consideration should be given to the relationship between the health care provider and the HMO because a capitation arrangement may be in place that can silently work against the interest of the patient,” he explained. “For example, if Harvard Pilgrim pays South Shore Medical Center $100 a month to give care to ‘Mrs. Jones’ and South Shore only uses $80 for her care, what happens to the remaining $20? Under the arrangement, the medical group can distribute that $20 as profit among its owners.”This undercuts the notion of the HMO as a charity, Simon continued. “They have abandoned the charitable concept by offering an incentive to the private medical group to limit the services provided to the patient and to enrich the doctors by encouraging a limitation on services provided.”

Selective Shooting

While attorneys say it is important to identify all potentially liable parties, they strongly advise against the “shotgun” approach to naming defendants.“One concern is piling on additional attorneys,” said Shuman. “If you name a plethora of defendants, you end up with a plethora of defense attorneys, each one filing his or her own discovery, which can be disadvantageous to your case.”Casby reiterated that overpleading could create trouble with the med-mal tribunal.“A better thing to do is add those that belong as they emerge during discovery,” he said.But by the same token, said Sheff, if there’s a good faith basis to believe that a number of physicians are liable, it may be sound strategy to name them all and drop them as further facts come to light.“Sometimes where multiple physicians are involved in the care of a plaintiff, it’s a good idea to bring them all in at the beginning in order to obtain their ‘expert testimony,’ because that’s essentially what it is with respect to negligence and causation,” he said. “Once the original defendants seem to pinpoint a particular doctor’s error and have testified via deposition about the details, it may not be necessary to maintain a case against him or her and, in fact, you might be obliged to dismiss against that defendant at that particular time. [This strategy] can allow you to obtain competent expert testimony, sometimes from a Massachusetts doctor in the same field, which is rare.”Simon added that this strategy also guards against the “empty chair” defense.“Otherwise the jury can say ‘the plaintiff has not really brought the case against the party who’s really at fault here, and why isn’t that other party or doctor in the case?’” he commented. “That’s something to be avoided at all costs from the plaintiff’s perspective.”

Tangled Webs

Boston med-mal lawyer Andrew C. Meyer Jr. stressed that it is critical to investigate the relationships between all the various entities involved in the care of the patient and the legal status of each such entity.“For example, one must always be aware, in emergency room situations, of whether or not there has been some subcontracting of services by the hospital to an independent group for the purposes of providing coverage to the emergency facilities,” he said. “Those facts and circumstances often give rise to additional defendants and other sources of potential liability.”The same holds true for laboratories, Meyer continued.“The public institution may be using laboratories that are private in nature or doctors that are not part of the charitable scheme and therefore might be individuals within a charitable institution that do not enjoy charitable status,” he said. “All those issues should be determined during the discovery process. It’s a dangerous position to be put into to be guessing at the beginning of the case as to what everyone’s status is.”

Racing The Clock

Shuman pointed out that the best way to maximize these various strategies is to engage in as thorough an investigation as possible before filing suit.“But sometimes you’re not so fortunate and you have a case that comes to you without a lot of time prior to the statute of limitations running out,” he said. “In that situation, you have to go with some gut instincts, at least do some informal discovery or rely on ‘relating back’ after you file [the complaint in case you need to add parties later on]. In my opinion, judges have been relatively liberal in allowing motions to amend based on the ‘relation-back’ theory.”Meyer added that lawyers should conduct further investigation before filing suit to ensure that the statute of limitations isn’t going to expire even sooner than originally presumed.“There are a number of health clinics in Massachusetts that are federally funded,” he explained. “That may make their employees federal employees. If so, the claim falls under the Federal Tort Claims Act, which is an entirely different animal than a state med-mal claim.”Meyer said this is really critical since the FTCA carries a two-year statute of limitations as opposed to the three-year period for Massachusetts malpractice claims. Additionally, he noted, the FTCA requires the plaintiff to notify the federal government well before bringing the claim, thereby allowing the government time to settle.“The failure to comply with the [federal] statute of limitations or the failure to give notice could be fatal to your case,” he said. “So if you had a claim against a health clinic and just assumed it was privately held and not federally funded, you might allow the [two-year] statute of limitations to pass.”