Carmody & Torrance LLP has a defense medical malpractice team with over twenty-five years of experience in defending hospitals, physicians and other healthcare providers. Our trial counsel have successfully defended a wide range of major claims brought against Connecticut hospitals and doctors, including: claims of physician misdiagnosis resulting in severe injury and death; claims of negligent surgeries resulting in quadriplegia and death; mismanagement of labor and delivery, resulting in severe infant brain damage and cerebral palsy; psychiatric malpractice claims relating to the failure to prevent suicide and homicide; sexual abuse in the course of the psychiatrist/patient relationship; claims of delayed diagnosis of malignant melanoma and cervical cancer arising from laboratory testing errors; and claims of negligent treatment in the emergency room.
Our medical malpractice trial counsels have built their reputation on a proven ability to try high-exposure cases to a defense verdict. Over 90% of the cases tried have resulted in verdicts favorable to the defense. Our trial counsels are frequently asked to take over litigation defense in very difficult cases.
Two aspects of our handling of medical malpractice claims have been particularly appreciated by clients: close consultation with risk management/in-house legal departments, and continuity of attorney personnel throughout all stages of the case, from initial investigation through trial. We strive to maintain an extremely close collaboration with the defendant physician and risk management in the defense of malpractice cases. We regard this close cooperation as an essential part of our successful defense record. Continuity of attorney personnel through trial is important, not only in developing an effective defense strategy, it is also important in assuring cost efficiency and avoiding the duplication of effort that is, unfortunately, all too common in medical malpractice defense.
Medical Malpractice Litigation Experience.
Our trial counsel have tried over one hundred cases on a wide range of medical issues to a defendant’s verdict. The following is a representative sample:
- Cardiothoracic surgery:
- Successfully defended cardiothoracic surgeon against allegations of negligent performance of repair of aortic tear.
- Emergency Medicine:
- Successfully defended claims of negligent emergency room care in failing to order a CT Scan following a head injury where the patient died of a subdural hemorrhage. Argued that death resulted from failure to provide relevant history of alcohol abuse and failure to follow discharge instructions.
- Neurosurgery:
- Brain tumor surgery: Successfully defended neurosurgeon against allegations of failure to identify and timely re-operate for post-operative hemorrhaging in a 39-year old mother of two, patient died following re-operation.
- Nursing care:
- Claimed nursing negligence in failing to recognize the signs and symptoms of myocardial infarction. The defense was that the nursing response was timely; the probable cause of death was not a myocardial infarction, but an aortic aneurysm.
- Orthopedic surgery:
- Successfully defended orthopedic surgeon charged with negligently failing to recognize and treat post arthroscopy infection, result in loss of repair and permanent fusion at knee.
- Obstetrics:
- Successfully defended claim of delay in performing Caesarean Section in presence of fetal distress, resulting in brain injury and necessity for lifetime care.
- Psychiatry:
- Successfully defended psychiatrist against claim of misdiagnosis of severe respiratory distress as a panic attack. The minor female died hours later from pneumonia and ARDS.
- Successfully defended psychiatrist against allegations of failure to properly assess suicidality. Patient threw himself out of a window in the psychiatric unit, resulting in severe brain injury.
Settlement Strategies.
Our approach is to identify, at an early stage, which cases should be tried through verdict and which cases should be targeted for early resolution. If our investigation indicates that liability is clear, our strategy is to focus our investigation and discovery in identifying factors that could facilitate a favorable settlement, such as contributory negligence by the plaintiff, causation issues, or medical or lifestyle issues of the plaintiff. This strategy has been successful in resolving cases with probable liability in a cost-effective manner, both in terms of litigation costs and indemnity payout. We pride ourselves in “thinking out of the box” in developing defense strategies.
- Death from massive undiagnosed abdominal bleed of 37-year-old mother of two, admitted to the hospital after a one-car accident. Through aggressive discovery, we documented a heavy drinking lifestyle and history of liver disease. We retained a liver transplant specialist to support our claim that the patient had irreversible liver disease. Although the medical negligence was clear, the case was settled for a modest sum, based on presentation of convincing evidence of a 2 to 3 year life expectancy.
- 35-year-old mother of two, taken by ambulance to the emergency room after a one-car accident, was examined and discharged without any diagnostic studies. She died the next day from massive internal bleeding. An aggressive investigation revealed that the patient was a long-standing Hydrocodone addict, and that the emergency room examination did not elicit pain because the patient’s pain response was dulled by her ingestion of Hydrocodone. Amassing the evidence to support this defense involved tracking prescriptions from hundreds of pharmacies in Connecticut and New York State over a five-year period, and tracking down the physician who prescribed the medications from Connecticut to New York to Florida and deposing him. This evidence turned a high-exposure case into a case that was settled for a modest sum.
Mediation.
Recognizing that litigation is not always a cost effective approach for our clients, we have utilized mediation to achieve favorable results. We have found mediation a particularly good forum for the resolution of obstetrical/cerebral palsy baby claims, where the extent of the damages and the sympathy factor has the potential for a multi-million dollar verdict. In this setting, we have been able to utilize defense economists, defense life care planners and annuitists to provide realistic alternative figures to the plaintiff’s economic projections. While the use of some of these specialists may be problematic at trial, their utility at mediation is enormous.
Obstetrics/damages:
Claimed obstetrical and nursing malpractice resulting in cerebral palsy where liability was problematic for the defense and plaintiff’s projected life care costs, based on a near-normal life expectancy, were $34 million. Testimony from experts, including the child’s pediatrician, epidemiologists and medical specialists, supported a much-reduced life expectancy. We used an annuitist to provide evidence that care could be purchased for less than $4 million. This evidence provided the mediator with the ability to settle the case at a reasonable figure.
Obstetrics/causation:
Claim that cerebral palsy resulted from nursing delay in calling obstetrician to advise him of ominous decelerations on the fetal heart monitor tracing. Liability for the hospital was problematic. However, analysis of the placental pathology and the clinical status of the neonate indicated that the hypoxic event that resulted in the infant’s brain damage preceded labor and delivery by approximately 48 hours. The hospital paid zero damages at mediation.
Other Exposure Reduction Strategies in Litigation High Exposure Cases.
We have successfully utilized two other strategies that reduce exposure and increase predictability of the outcome:
- bifurcation of liability and damages; and
- high/low agreements.
Although plaintiffs’ counsel vigorously oppose bifurcation of liability and damages, we have successfully briefed and argued that bifurcation is appropriate in cases where there is great potential for the jury’s analysis of liability to be influenced by sympathy. Two of these bifurcated cases involved quadriplegia, and a third involved severe brain damage. Two resulted in defense verdicts, and a third was settled during trial. We have utilized high/low agreements to protect hospitals from run-away verdicts in obstetrical and brain injury cases where the potential exposure is high. This allows the client to try a medical malpractice case that has a strong defense, but where the downside risk of a multimillion dollar verdict would otherwise lead the client to settle.