Litigating Medical Malpractice Claims
Scope and Purpose
This annual course of study, comprising more than 16 hours of instruction, is designed to enable litigators with limited trial experience in medical malpractice cases to meet the difficult challenges of such cases. More experienced practitioners and attorneys who have attended prior programs may benefit from a review of trial theories, analytical sessions with physicians, and an update of the law. The course presents faculty from several jurisdictions, both practitioners and academics, who offer the perspectives of both plaintiffs and defendants.
Malpractice cases are characterized by complex fact patterns, the need for proficiency in one or more fields of medical expertise, a central role for expert testimony, conflicts among co-defendants, a large damage potential, and unique opportunities for the presentation of demonstrative evidence.
Building upon a review of the established and emerging theories of liability, the faculty examines the critical skills involved in preparation and trial: medical records analysis; fact gathering; concerns and strategies of the defense, including multiple defendant situations; particular problems of hospitals; finding and making effective use of experts; proving the standard of care; and preparation and cross-examination of physician defendants and experts.
This year’s program features medical perspectives on ascertaining the standard of care and proximate cause. A panel of prominent physicians discusses clinical decision-making and the determination of standards of care in internal medicine, obstetrics and gynecology, otolaryngology, and alternative medicine.
A separate panel addresses predictable reactions and decision processes of juries in medical malpractice cases. Accomplished lawyers discuss the implications of studies about jury decision-making, the optimal ways to design demonstrative evidence to teach and persuade, the benefits and limitations of attitude research, and the use of jury analysts. A final panel examines trial strategy, including the use of opening statements, motions during trial, and closing arguments.
Attention is given to practical advice and strategic issues related to claims made against managed care organizations.
A full two hours are devoted to ethics, this year examining alternative medicine, innovative therapies, and human experimentation. Time is reserved throughout the program to address registrants’ written questions.
Planning Chairs
Frank M. McClellan, Professor, James E. Beasley School of Law, Temple University, and Eaton & McClellan, Philadelphia
Stephen S. York, McAloon & Friedman, P.C., New York
Faculty
Brian E. Appel, Law Office of Brian E. Appel, Philadelphia
Janet J. Bobit, Hunter & Bobit, P.C., Boston
Robert W. Casby, Sugarman and Sugarman, P.C., Boston
Allen T. Eaton, Eaton & McClellan, Washington, D.C.
Richard S. Eisenstaedt, M.D., Board Certified Oncologist and Hematolgoist and Medical Director, Abington Memorial Hospital, Abington, Pennsylvania
Philip J. Foley, Ogden & Sullivan, P.A., Tampa
Sezelle A. Gereau, M.D., Attending Otolaryngologist and Clinical Instructor, Children's Hospital of New York, and The Center for Health and Healing, New York
Phoebe A. Haddon, Professor, James E. Beasley School of Law, Temple University, Philadelphia
Francis L. Hutchins, Jr., M.D., Professor, Obstetrics and Gynecology, Drexel University College of Medicine, Philadelphia
Arthur H. Patterson, Ph.D., Senior Vice President, DecisionQuest, State College, Pennsylvania
Jodi M. Petrucelli, Sugarman and Sugarman, P.C., Boston
David Gary Smith, M.D., PROGRAM Director, Internal Medicine Residency Program, Abington Memorial Hospital, Abington, Pennsylvania
Mary E. Wiss, Judge, Superior Court of California, San Francisco
Program Schedule
Thursday, September 28, 2006
- 8:00 a.m. Registration and Continental Breakfast
- 9:00 a.m. Introductory Remarks and Course Overview
- 9:15 a.m. Overview – Medical Malpractice Litigation: Myths and Facts – Professor McClellan
- 9:45 a.m. Liability Theories against Physicians, Hospitals, and Managed Care Organizations – Professor McClellan
- 10:30 a.m. Networking Break
- 10:45 a.m. Special Problems of the Hospital as Defendant: Corporate Liability and Nursing Malpractice – Messrs. Appel and York
- 11:15 a.m. Defense Perspectives and Strategies – Messrs. Appel and York
- 12:00 noon Questions and Answers
- 12:15 p.m. Lunch Break
- 1:30 p.m. Protocols in Drug and Product Cases – Mr. Eaton
- 2:15 p.m. Evaluation: Cases To Take and Cases To Avoid – Messrs. Appel, Casby, Eaton, and York
- 2:40 p.m. Developing the Case for the Plaintiff – Mr. Eaton
- 3:00 p.m. Networking Break
- 3:15 p.m. Developing the Damage Case for the Plaintiff; Use of Demonstrative Evidence – Ms. Petrucelli
- 4:15 p.m. Medical Records Analysis: A Case Study – Mr. York
- 4:45 p.m. Questions and Answers
- 5:00 p.m. Adjournment for the Day
Friday, September 29, 2006
- 8:00 a.m. Continental Breakfast
- 8:30 a.m. Developing the Case for the Defendant – Mr. York
- 9:15 a.m. Preparing To Take the Physician’s Deposition – Mr. Casby
- 9:35 a.m. Preparing the Physician for Deposition – Ms. Bobit
- 10:00 a.m. Networking Break
- 10:15 a.m. Finding and Working with the Medical Expert – Messrs. Casby and Foley
- 11:00 a.m. Presenting Expert Testimony at Trial – Judge Wiss
- 11:30 a.m. Preparing To Confront the Opposing Expert – Ms. Bobit and Messrs. Casby, Foley, and York
- 12:00 noon Questions and Answers
- 12:15 p.m. Lunch Break
- 1:30 p.m. The Functions and Performance of Juries in Medical Malpractice Cases – Dr. Patterson
- 3:15 p.m. Networking Break
- 3:30 p.m. Trial Strategy Panel Discussion on Opening Statements, Motions during Trial, and Closing Arguments; View from the Bench – Judge Wiss and Faculty Panel
- 4:45 p.m. Questions and Answers
- 5:00 p.m. Adjournment for the Day
Saturday, September 30, 2006
- 8:30 a.m. Continental Breakfast
- 9:00 a.m. Clinical Decision-Making; Internal Medicine; Obstetrics and Gynecology – Drs. Eisenstaedt, Hutchins, and Smith
- 10:00 a.m. Networking Break
- 10:15 a.m. Ethical and Legal Issues in Alternative Medicine, Innovative Therapies, and Human Experimentation – Dr. Gereau and Professor Haddon
- 11:15 a.m. Panel Discussion on Ethics – Professor McClellan and Faculty Panel
- 12:15 p.m. Questions and Answers
- 12:30 p.m. Adjournment
Total 60-minute hours of instruction: 16.25, including two hours of ethics
Suggested Prerequisite: Limited experience in legal practice in subject matter or completion of Basic CLE Course in subject matter
Educational Objective: Acquisition of knowledge and skills to develop proficiency as a practitioner; maintenance of professional competence as a practitioner; provision of information on recent legal developments
Here's what registrants have said about this course:
In a word: fantastic. This was an excellent seminar with very insightful and diverse perspectives. The idea of having doctors and psychologists on the panel was brilliant. I’ve learned so much that goes into practicing med mal that has nothing to do with black-letter law; I can only hope that I’ll be a better attorney as a result. I’ll definitely recommend this seminar to my colleagues. I’ve been to five ALI-ABA seminars and all have been quite good – much better than [others].
I greatly enjoyed this program. I was very impressed with the caliber of the speakers. More importantly, I learned many things that will have practical application in my practice.
Excellent presentations on preparing the case for both sides, ethics, and jury selection. Also the variety of topics kept it interesting and was thought-provoking. Presenters were enthusiastic and seemed to be in tune with current trends.
Thank you for such an outstanding program, highly qualified faculty, impressive presentations and informative course. I loved it!
