A mediator's perspective on health care negligence cases: From advocate to neutral

During my more than four decades litigating primarily plaintiff cases, a majority of my trials addressed health care negligence claims. I did not go bankrupt as a result of this focus but actually managed to have a fulfilling career with many positive results and the occasional not-so-positive outcome, all the while enjoying family, community, hobbies and the law.

Because I was thrown into the pit (courtroom and jury box) early in my career, I learned a number of lessons about litigation generally and health care negligence cases in particular that served me well over a long career. Those lessons now serve me with equal value in my mediation practice.

This article seeks to offer practical advice primarily to the young advocate who prosecutes or defends a health care negligence case. I am, frankly, a little humbled to think that what I have to say will be valuable to the veteran health care negligence lawyer-plaintiff or defense. These are some of the finest lawyers I have known; most had a comfort level with medicine that gave me assurance that if I passed out in their presence, I was in good hands.

Perspective No. 1: Screen carefully

Plaintiffs' lawyers must always screen health care cases with caution. Early in my career, I learned the importance of carefully screening inquiries, declining most claims of health care or health facility negligence. This is the only way to be successful in a complex area of law. Let me be clear: I did not turn away good cases; I simply saw that health care negligence cases were among the most challenging civil cases--with both the law and the very nature of medicine seemingly stacked against the patient.

Over the course of my years as a litigator, I declined more than 95% of the cases that came my way because I did not believe they had a reasonable chance of a successful outcome. Given the legal limitations on damages, a common starting point when I declined cases was that potential damages did not warrant the time and expense of litigation.

In perhaps no other field of law does the mediator bring to the table as much of his or her own instincts about what will sell to a jury and how the risks of trial compare to settlement, both for the defendant and the plaintiff.

Perspective No. 2: Line up experts

Even when I found a case potentially worth pursuing, my pre-litigation review was far from over. Whether or not prevailing California law required a "certificate of merit" before filing suit, I would never file and serve (filing might be required for certain statute of limitations issues) unless and until the case was reviewed by an expert in the relevant field of health care.

But expert review is complicated. Many health care professionals will not touch a legal claim. Some will review the claim but not agree to be a designated expert. My recommendation for plaintiffs' counsel is to find experts who are not "hired guns" (yes, they are out there); instead, look for individuals with substantial and compelling reputations among their peers. A genuine case of health care negligence resulting in substantial injury will be seen that way by the majority of practitioners in the field.

Perspective No. 3: Know the law

I mean really know the law. Read and re-read the applicable health care negligence jury instructions (CACI 500 and following). With regard to the general rules, evidence and experts, know cases such as Flowers v. Torrance Memorial Hospital Medical Center (1994) 8 Cal.4^th 992, Landeros v. Flood (1976) 17 Cal.3d 399, and Mann v. Cracchiolo (1985) 38 Cal.3d 18.

In nursing home abuse cases, counsel should know how the Elder Abuse and Dependent Adult Civil Protection Act (EADACPA) is viewed in cases such as Winn v. Pioneer Medical Group (2016) 63 Cal. 4th 148. Attorneys should also know the current state of the law regarding admissible evidence and causation, in light of People v. Sanchez (2016) 63 Cal.4th 665 and the 2024 amendments to Evidence Code Section 801.1.

Perhaps most importantly, counsel should understand how both sides in a health care negligence case must use or deal with CACI 505 and 506. CACI 505 says that a doctor is not necessarily negligent just because her efforts are unsuccessful or she makes an error that was reasonable under the circumstances. Additional language might try to reduce the sting, but lawyers on both sides need to understand how these simple words could be applied in the jury room.

CACI 506 says that a health care practitioner is not necessarily negligent just because he chooses one medically accepted method of treatment or diagnosis and it turns out that another medically accepted method would have been a better choice. Taken together, these two jury instructions on the field of health care negligence law could not be more problematic for plaintiff attorneys or potentially helpful for defense counsel.

Since I morphed from an advocate to a neutral, these jury instructions, and indeed all of the law governing health care negligence cases, are front of mind as I attempt to have an impact on the mediating parties.

Perspective No. 4: Know practice guidelines

In addition to "the law" as we think of it, lawyers on both sides are well advised to learn about protocols and clinical practice guidelines. The American College of Obstetrics & Gynecology (ACOG) publishes detailed practice guidelines on birth injury cases, and just about every field of health care has clinical practice guidelines that can be found at the National Institute of Health and elsewhere. These guidelines may not answer every question, but advancing one's health care education before diving into a civil action alleging health care negligence is a must.

Perspective No. 5: Understand the playing field

Beyond the law and the protocols, attorneys would do well to understand some perspectives that are not taught in law school. How do health care negligence cases actually perform when they go to trial? Lawyers who handle such cases in California know that, since 1975, the Medical Injury Compensation Reform Act (MICRA) has played an oversized role in verdicts. Without going into the details of the act, we can generally agree that even with the expanded recoveries permitted by 2023 changes in the law, the limits on recoveries and attorneys' fees, coupled with the potential for periodic payments of damages, continue to tilt the scale toward the defense.

Most studies over the past 50 years show that while 80-90% of health care negligence cases settle without going to trial, those that do go to trial result in defense verdicts 75-85% of the time.

In few other areas of law does the parties' presentation matter more. Every good plaintiff case starts with an appealing, likeable, disciplined and sympathetic plaintiff. On the defense side, it matters that the defendant physician is board-certified, widely published and generally well liked by his or her peers. It matters when the so-called "bedside manner" revealed by the testimony and records is less than ideal.

Conclusion

Lawyers have taken on plaintiff health care negligence cases since MICRA was enacted in 1975 because negligent health care exists; too often it results in death or catastrophic injury. Patients and their families need competent lawyers to advocate for them in such cases. 

But every health care negligence case must be considered carefully, with eyes wide open and hearts tempered by the realities of the law and the nature of medicine itself. This is a lesson I learned over the course of my 44 years as a litigator. I now apply these same perspectives in my efforts to resolve difficult cases through mediation, a forum in which both parties and their counsel are seeking final resolution.