So You Think You Want a “Hardball” Lawyer?

Many clients think that it advances their interests to have a “fire-breathing” lawyer, one who takes no prisoners and utilizes a “scorched earth” policy when representing them in litigation. In fact, nothing could be further from the truth. Extending professional courtesy to the opposing attorney is not just frequently required by the ethical rules – it’s usually good business.

Make no mistake about it, professional courtesy does not equal weakness. It is not a sign of weakness to accommodate a reasonable request for an extension of time to respond to discovery requests or file a brief. Such courtesies will both advance the client’s interests and conserve the client’s resources in several ways.

First, if the client is paying for representation on an hourly basis, the endless exchanges of nasty e-mails, faxes or letters that characterize “hardball” litigation can get very expensive. The client is basically paying for the lawyer’s ego-gratification by expending resources that could be better spent advancing the issues in the litigation. Depleting the client’s resources without materially advancing the client’s interests is bad business.

Secondly, it is impossible to predict how the issues will develop in litigation with any degree of certainty. As a result, it is likely that at some point, you will need an extension of other accommodation regarding a response due, a hearing to be scheduled, the date of a deposition, etc. The best way to prevent unnecessary battles over these inevitable scheduling issues is to be receptive to requests for reasonable accommodations by the other side. The willingness to accommodate the other side is not limitless, of course. And it should never place the client at a material disadvantage. But as long as there is no disadvantage, agreeing to reasonable requests relating to scheduling matters insures that when the client needs such an accommodation, the other side’s agreement will be more readily forthcoming. It is much more economical to handle these issues by agreement of the parties, rather than having to apply to the court for a ruling.

Third, many clients do not realize that judges appreciate it when the attorneys involved can work things out among themselves, rather than asking the judge to take time from his busy schedule to rule on matters that, in the grand scheme of things, are not all that significant. Judges make many rulings during the course of a case, and the vast majority of them involve the judge’s exercise of his or her discretion. The easiest way to get on the judge’s bad side is to require court time to decide matters that ought to be the product of agreement between counsel. The lawyer who is unwilling to extend professional courtesies, and as a result, takes up a lot of the judge’s time, frequently finds him or herself on the losing side of many of these discretionary rulings.

Finally, civility in dealing with the other said definitely pays dividends in the long run. Treat the opposing party with hostility and discourtesy in a deposition, and you’ll find that your witnesses get treated the same way when their depositions are taken. Adopt a hostile tone in your court filings, and the judge will be unfavorably impressed. Evasive and incomplete answers to discovery requests multiply the cost of litigation because they generate motions to compel, which have to be defended, and they encourage like behavior by the other side.

In summary, extending professional courtesies to the other side and acting at all times with civility should be part of the overall litigation strategy. Clients who think that they want a hard-nosed, unyielding lawyer representing them do not understand the negative effect such behavior can have on their case. It is up to the lawyer to educate the client by explaining to him or her how such tactics are not in their long-term best interests and do not materially advance the course of the litigation. Most clients, once they understand that acting with professional courtesy will save them money and enhance their chances of a favorable outcome, are grateful that their attorney resisted their initial desire for a “hardball litigator.”

Jury Trial Win for BCC's Client in Medical Malpractice Trial

Robert F. Parker, a partner in the firm’s Merrillville office, recently obtained a jury verdict for the defendant in a medical malpractice trial in Crown Point, Indiana. The case was brought by the family of a 74 year old patient of the defendant cardiologist, who was treated with Coumadin for his atrial fibrillation, and subsequently died of an intracranial hemorrhage. The family alleged that the cardiologist failed to properly monitor the patient’s coagulation status by frequent blood tests. After a three day trial, the jury deliberated only a little over an hour before returning its verdict for our client.

Robert F. Parker

Christmas Cheer and Social Host Liquor Liability

Thinking of throwing a holiday party, or perhaps a New Year’s Eve bash? ‘Tis the season to be jolly. And that includes holiday parties, many of which involve alcoholic beverages. Most people are generally aware that the local tavern or bar can be held liable if a patron is over served and then causes an accident resulting in injury or death. Many, however, are blissfully ignorant of the fact that the “dram shop” liability claim that can financially cripple a commercial establishment can do the same or more to a homeowner, under certain circumstances.

Indiana law imposes civil liability on persons who violate the Dram Shop Act for damages arising from the intoxicated person’s subsequent tortious conduct where: “(1) the person furnishing the alcoholic beverage had actual knowledge that the person to whom the alcoholic beverage was furnished was visibly intoxicated at the time the alcoholic beverage was furnished; and (2) the intoxication of the person to whom the alcoholic beverage was furnished was a proximate cause of the death, injury, or damage alleged. It’s important to note that the law makes no distinction between the local tavern, which sells alcoholic beverages in the ordinary course of its business, and a “social host,” i.e., the co-worker who invites you over to his house for a drink during the holiday season. Since at least 1985 it has been clear in Indiana that the Dram Shop Act presents a risk not only to commercial purveyors of alcoholic beverages, but to anyone who furnishes, just “one more drink” to an obviously intoxicated person. As the Indiana Court of Appeals said, borrowing language from a California court decision:

Doubtless, the spectre of civil liability may temper the spirit of conviviality at some social occasions, especially when reasonably observant hosts decline to serve further alcoholic beverages to those guests who are obviously intoxicated and perhaps becoming hostile. Nonetheless, in this context, we must surely balance any resulting moderation of hospitality with the serious hazard to the lives, limbs, and property of the public at large, and the great potential for human suffering which attends the presence on the highways of intoxicated drivers. In doing so we need not ignore the appalling, perhaps incalculable, cost of torn and broken lives incident to alcohol abuse, in the area of automobile accidents alone…

Most homeowner’s insurance policies provide liability coverage for host liquor liability at your home or another location, as long as you’re not charging for alcohol. But you should check with your insurance agent, both to make sure you have liability coverage under the circumstances, and to make sure that your liability limits are adequate. Liability limits that protect you against a guest to your home tripping on the front step and breaking an ankle may not  be adequate to protect you against the potential liability when a drunken partygoer is involved in a serious automobile accident on the way home.
 
And if you or a loved one is seriously injured as a result of the intoxication of someone who was over served at a holiday party, you need not despair just because the intoxicated person happened to get drunk at a private residence, as opposed to a tavern or restaurant. It is still possible to obtain just compensation by claiming against the host’s homeowner’s insurance policy.

To protect yourself against possible claims, follow these simple rules when hosting a gathering that involves alcoholic beverages:

• If possible, make your party “BYOB.” When guests supply their own alcoholic beverages, it significantly decreases the risk of liability on the part of the host.
• Don’t fix or serve drinks to the guests. Allow the guests to serve themselves.
• Include soft drinks, water, coffee, etc., at the party, allowing guests to choose non-alcoholic alternatives.
• Encourage the use of designated drivers, and have the phone number of the local cab company handy to give to partygoers who may appear a bit tipsy on leaving.
• If your gathering is a very large one, consider the use of a professional bartender service. Professionals are trained to spot the signs of intoxication, and an ounce of prevention is worth a pound of cure. Check to make sure the bartender is adequately insured, and that the insurance will protect you in the event of a claim.

BCC Successfully Defends Physician in Case with National Implications

BCC attorneys Bob Parker and Dan Gioia successfully defended a local physician in a case that is the first of its kind in the nation, interpreting the Health Insurance Portability and Accountability Act of 1996 (“HIPAA”). HIPAA is a federal statute designed to increase patients’ access to their own medical records, while at the same time safeguarding their privacy. In the case, BCC’s client was a local family physician who provided prenatal care to a local woman. The care included an ultrasound exam which revealed an abnormality in the fetal brain. At around the same time a New York couple began proceedings to adopt the baby, who had just been born. The natural mother signed an authorization prepared by the New York couple’s attorneys which requested that the family physician provide the adoptive parents’ attorney with records, including the records of the prenatal examination. For a variety of reasons, the physician failed to provide the records. The New York couple went ahead anyway and finalized the adoption. Several months later, the baby began to exhibit neurological abnormalities and has since been determined to be profoundly and permanently disabled, requiring a lifetime of medical care. The New York couple sued the family physician, contending that if he had provided the records, as he was obligated to do, they would not have finalized the adoption. BCC attorneys convinced the trial judge that the authorization did not comply with HIPAA and argued that the physician did not have a duty to provide the records since the authorization was deficient. Although the trial judge acknowledged that the deficient authorization was not among the reasons the physician failed to provide the records, nevertheless the defects in the authorization relieved the doctor of any duty to provide the records, and entered a summary judgment for the physician. The adoptive parents appealed. In a unanimous decision issued August 13, 2012, the Indiana Court of Appeals upheld the position taken by BCC attorneys on behalf of the doctor, and affirmed the summary judgment. The Court’s opinion acknowledged “the great emotional and monetary harm suffered” by the New York couple. But the tragic consequences notwithstanding, the Court concluded that “[n]evertheless, we cannot find a duty in negligence when none exists.” The decision is believed to be the first of its kind in the country, interpreting HIPAA’s provisions to hold that a physician has no duty to provide records upon a patient’s authorization if the authorization does not include certain HIPAA “core elements,” or “required statements.” E. J. v. Paul Okolocha, 2012 Ind. App. LEXIS 388 (Ind. Ct. App. Aug. 13, 2012).

Are Medical Malpractice Claims Based On Retained Surgical Sponges Going The Way Of The Dodo?

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Historically, about 5% of all non-obstetrical malpractice claims arising out of surgery involve retained foreign bodies. A 2009 report in the Journal of Robotic surgery states that 1 in 1,500 open abdominal or chest procedures results in a retained surgical item. In a significant number of those claims, the retained foreign body is a sponge, towel, pad, or other “soft” surgical supply. Until recently, hospitals and surgery centers would embed small metal threads in these soft materials so that they would be detectable by portable x-ray. This requires the surgical staff to keep a current count at all times. Such counts are time-consuming and errors can still be made. When the count doesn’t match at the end of the procedure, a portable x-ray unit is brought into the surgical suite and the patient is x-rayed to determined whether a foreign body has been retained. Such a procedure prolongs surgery, increases cost, and exposes the patient to radiation unnecessarily. In a majority of cases involving retained sponges, the nurses’ sponge count at the conclusion of the procedure was recorded as “correct,” so this procedure was not utilized.

Defending such cases is extremely difficult, although not impossible. In Indiana, as in many places, a malpractice claim based on a retained foreign body is subject to the principle of res ipsa loquitur, or “the thing speaks for itself.” In such cases, the burden of proof shifts to the surgeon to prove that he was not negligent in failing to remove the foreign body before closing the patient. And it is a long established principle that the duty to remove sponges before closing the patient cannot be delegated to nursing personnel.

A surgeon is charged, as a matter of law, with the duty to remove sponges used in the operation, which sponges will not be of use in the abdomen after the operation. Ordinary care and caution forbids a surgeon to delegate the absolute authority and responsibility to a nurse or nurses to account for sponges and to thus escape responsibility himself.

Funk v. Bonham, 204 Ind. 170, 180, 183 N.E. 312, 316 (1932).

New technology is available, however, that may cause these cases to become extinct. The FDA has approved the use of radio frequency identification (RFI) chips to automatically keep track of the sponges, pads and towels used during surgery. This allows surgeons to complete cases more quickly, without spending time confirming the absence of any such retained foreign bodies. Although RFI technology does not detect clamps or other surgical instruments, it is much quicker than using portable x-ray equipment to find sponges and towels, and does not expose the patient to unnecessary radiation.

RFI technology includes chips that are sewn into the soft surgical supplies and a wand-like instrument that is simply waved over the surgical site prior to closure. Each chip is unique and its unique identifier is displayed on a monitor that tracks each chip. As the sponge is removed from the surgical field, the technology displays it and notes that it has been counted. If there is any sponge that has not been counted, that is displayed on the device. The system also includes a wand-like device that is waved over the surgical site and detects any chips, which would indicate the presence of a retained sponge, towel, etc. When the wand detects a chip, a red LED light is displayed and an alarm sounds.

Some hospitals use the RFI technology only for high risk procedures, such as those undergoing emergency surgery, obese patients, cesarean sections, and patients undergoing surgery on more than one area of the body. Others have implemented it for all surgical procedures.
 

It is only a matter of time before the use of RFI technology will become “standard of care” in surgery. When that happens, we may have seen the last of retained sponge malpractice cases.