From Trial Magazine May 1996
By Les Weisbrod

The traditional approach to medical negligence cases espoused by most experienced practitioners is to limit your case to succinctly demonstrating the negligence of the health care provider. The thinking behind this approach is that it is hard enough to prove the standard of care was breached, so why take on the additional burden of trying to show that the defendant is mentally or physically impaired or otherwise incompetent. The traditional approach encourages the plaintiff's attorney to think in terms of proving negligence, not reckless disregard, improper motivation, or even deviant behavior.

Thorough investigation of the defendant doctor using the techniques outlined in this article may lead to evidence of reckless behavior, conscious disregard of patients, or other facts that will support an award of punitive damages. In states where punitive damages are not available, the techniques will simply make a plaintiff more likely to prevail at trial.

Before even beginning the type of investigation required to dig out the negative information or other relevant evidence about a defendant, you must first have a case where a qualified expert witness will testify to negligence and proximate cause. No amount of negative information will substitute for facts demonstrating medical negligence or save the case from summary judgment.

Second, the pursuit of this information may not be cheap. Negligence cases should not be brought unless there are serious, compelling damages.

Third, timing is everything. As soon as you have done enough research to know you have a good case  -- which almost always means reviewing the medical records with a qualified expert -- do your investigation. The earlier, the better.

Remember, doctors and other health care providers are human beings. Plaintiffs' attorneys are taught that the general public puts doctors and health care providers on a pedestal. Thus, the general thinking of trial lawyers is that it is harder to win a medical negligence case than any other personal injury case, especially if there is a credibility contest between a doctor and a patient.

The number one mistake many attorneys make is to treat doctors and other health care providers with greater deference and respect than other defendants. If you are so busy acting deferential, you will no doubt forget to inquire into that medical professional's nonprofessional background or habits.

Medical Incompetence

The first category of negative information you should begin investigating is whether the defendant has a history of medical incompetence or conscious indifference to patients. Not only will this allow you to explain to a jury or insurance carrier why punitive damages should be considered against a doctor, but it will also allow you to find other culpable parties to add to the suit. For example, if a physician has a prior history of incompetence at a hospital and the hospital knew or should have known about it, the hospital can be liable for negligent credentialing or retention of the physician.

There are several ways to find out about a doctor's competence. Always check court records in the county where the doctor practices and lives or has practiced or lived to find out whether he or she has ever been a party to a negligence case.

If you discover the doctor has been named in other negligence suits, you can contact plaintiffs' attorneys in those suits and obtain valuable information through interrogatories, requests for admissions, depositions, and so on. After obtaining initial written discovery from the doctor, send depositions on written questions with a subpoena duces tecum to the doctor's medical school and residency program. There you can obtain more information as to a physician's competence.

For example, I had a case where an orthopedic surgeon's residency records showed that he had been put on probation within the program (and almost kicked out). The records also showed that supervising faculty members commented about his failing to have a good working "fund of knowledge."

You can also discover information by obtaining part of the doctor's credentialing file, such as applications for privileges and reference letters. You can usually get this file by formal discovery to the hospitals where the defendant doctor has privileges.

Another important area to investigate is the doctor's employment history. By sending depositions on written questions with a subpoena duces tecum to prior employers, you can glean information about the doctor's stability and any problems that may have been documented.

Yet another place to check is the state board of medical examiners. If a state board has taken any public action against the physician, you can obtain certified copies of board orders. In most states, you can also obtain copies of transcripts of proceedings, hearings, testimony, and so on. In some states, the state board periodically prints newsletters or journals and will mail a copy to anyone who requests them. These periodicals contain lists of public actions that have been taken against doctors.

Also, most state boards of medical examiners keep public information about every physician on microfilm. This includes copies of the physician's application for licensure, renewal correspondence, and other basic information. You can obtain copies of these microfilmed materials at a reasonable cost directly from the board.

Similarly, you can obtain information about nurses from the board of nurse examiners in your state. I once obtained files from the Texas State Board of Nurse Examiners that included public disciplinary action taken against a nurse and a photo of the nurse curled up on a hospital bed sleeping during his shift. Our case also involved an issue of patient neglect during a night shift.

Mental or Physical Incapacity

Another category that should be thoroughly explored is the doctor's mental or physical incapacity. This can include psychological imbalance or mental illness or a physical handicap. A physician can also become incapacitated because of drug or alcohol problems. As much as 10 percent of the population has a drug or alcohol problem. That means there is a 10 percent chance that the Dr. Marcus Welby you are deposing has a drug or alcohol problem that may have interfered with the treatment of your client.

If you have reason to believe that a doctor may have a drug or alcohol problem, you may be able to verify this. For example, talk to the janitors who clean the doctor's office building. I have obtained statements and affidavits from janitors detailing what they saw physicians drinking, how often, and how many empties were regularly in the garbage.

Also, you can obtain treatment records, psychological records, or other relevant medical records pertaining to a physician's mental or physical incapacity. This can be done by depositions on written questions with a subpoena duces tecum directly to the health care providers.

Criminal Activity

Another area you should investigate is any criminal activity by the doctor. Regardless of how a physician answers an interrogatory inquiring into past criminal conduct, you should perform your own criminal records check. This can be as easy as checking out the public criminal records in the county in which the doctor lives and works or has lived and worked. You can also have a private investigator run a criminal check for you.

Many times physicians do not want past criminal conduct made known to the public. Therefore, they may shade the truth in their interrogatory answers. Even relatively innocuous criminal convictions can become important evidence if a physician has lied about them in interrogatory answers or in a deposition. An example of this was a wrongful death case I handled.

The defendant surgeon, who was chief of staff at a prominent hospital, had been convicted twice of fondling a male undercover police officer in an adult movie theater but had denied under oath in answers to interrogatories in the wrongful death action that he had any criminal convictions. The trial judge struck the doctor's original answer to the plaintiff's petition and entered a default on plaintiff's motion as a discovery sanction. The judge declared that on his own motion he intended to send perjury charges to the grand jury.

Financial Difficulties and Divorce

Just like other human beings, doctors sometimes find themselves in financial difficulties. They can file for bankruptcy, go through complicated divorce proceedings, and have tax liens or IRS liens placed on their property.

Financial problems may influence a physician to make adverse treatment decisions such as performing unnecessary operations or refusing to refer patients to another physician such as a specialist. In this area of financial dealings, you should perform a deed/title search to uncover any property that the physician owns or has sold recently in order to help determine if the physician has a pressing need for money. Also, this research will help establish an estimated value of a defendant's personal assets where the defendant may have low insurance policy limits, such as the obstetrician with a $200,000 malpractice insurance policy in a brain damaged infant case.

In addition to explaining a doctor's financial difficulties, divorce proceedings may hold a wealth of other information. The reasons for the divorce may be listed in interrogatory answers, and specific facts pertaining to the physician and his or her character can often be found in affidavits filed by spouses or others. Many times, if a divorce has been closed, the ex-spouse will be more than happy to talk about the physician's habits, which may include alcohol or drug dependency, or other factors that you could not learn anywhere else.

Board Certification

Yet another area to investigate is the physician's board certification scores or licensing scores. A physician's board certification exam results can be obtained directly from the examining board by way of a deposition on written questions with a subpoena duces tecum. The results may show the physician failed his or her boards numerous times and can even give the scores in various categories. The same holds true for the foreign medical graduate exam if you have a physician who took that exam to become licensed in the United States.

Other sources that may prove fruitful are a physician's auto registration, driving record, assumed name records, corporate record filing with the secretary of state, and local county medical association records.

Investigating Defense Experts

The importance of the defense expert's credibility usually runs a close second to (and sometimes even supersedes) the importance of the defendant doctor's credibility. The goal is to uncover negative information that shows jurors why they cannot trust his or her testimony.

Experts who testify frequently may have given testimony they cannot recall and may contradict their current position or otherwise help your position. Be certain to perform either a LEXIS or WESTLAW search, particularly in the federal courts and the state civil trial databases of the expert's home state. A name search will identify your expert in each instance where his testimony was discussed in later appellate opinions.

An increasingly valuable source is the deposition depository kept by ATLA or some ATLA litigation groups, including the Birth Trauma Litigation Group. Taking time to read the deposition testimony of frequently used experts can yield valuable information.

Impeachment data can be elicited from prior cross-examination. Further, a general frequency of deposition testimony can be elicited that may, in fact, impeach the expert's own estimate of his or her witness experience.

If you cannot find the expert's depositions in the ATLA databank or other databanks, there are other ways to obtain prior deposition testimony. One is to contact other plaintiffs' lawyers who do primarily medical negligence work.

Chances are if an expert does a lot of testifying in an area, most of these lawyers will know of that expert. Many law firms (including mine) keep their own internal deposition databank.

Another excellent way to obtain depositions of medical experts is to contact all court reporters where the expert lives and works. Your court reporter has directories of court reporters in a given area, and you can ask for a copy of the pages that give names and addresses of court reporters in the geographic area in which the expert resides.

If you call a few of the reporters, even in a large metropolitan area, you will quickly find out the four or five reporting firms that do most of the medical depositions. Then contact them by phone or by fax and find out if they have depositions on the expert.

Most court reporters are happy to make a little extra money by furnishing you with a copy of an expert's deposition. Also, they may give you the name of another reporter who may have also taken the expert's deposition.

If the expert is frequently used, you will be able to review past depositions, and through these, pick up facts that will lead you to other depositions of that expert. By reviewing expert testimony, you can often pick up repetitive defenses used by the expert regardless of the facts of the case.

Pre-deposition discovery also includes finding out about the expert's school affiliations from medical school, internship, residency, and faculty positions. It is not unusual to find experts appearing in defense of a classmate or an intern or resident from their same training program.

It is important to find out, whether by looking through depositions of an expert or by asking the expert in the deposition you take, whether he or she has ever written papers or given seminars or presentations to other defense lawyers, claims adjusters, or insurance personnel.

For example, my law firm has uncovered training videotapes of certain frequently used defense experts that were used by a large health care insurer to train its insurance adjusters and defense lawyers on how to "defend the brain damaged baby case." You won't find out about useful information like this unless you ask.

Also, find out how much experts claim they have made not only from testifying in medical negligence litigation but also from testifying in negligence cases involving the same insurance company. We have in the past, by depositions on written questions with a subpoena duces tecum, obtained 1099s directly from health care insurers for experts they frequently retain. Imagine the impact on a jury of showing that a defense expert has made over half a million dollars testifying for defendants insured by the same insurance company. Even though injection of insurance in a negligence case is usually forbidden, you may be able to get it in front of the jury to show bias of the witness.

Exposing Safety Hazards

Always remember almost all of us who represent plaintiffs became lawyers because we wanted to help people. Exposing physicians who are hazards to patient safety is difficult and important work. It requires great amounts of time, devotion, and creativity.

One reward comes when we can save other patients from possible injury at the hands of an incompetent or impaired health care provider. Information obtained using the methods outlined in this article should never be used just to settle a case for more money and then be kept secret by means of a confidentiality agreement. To accomplish our mission of protecting the public, pertinent information should be turned over to state boards of medical examiners or other proper authorities in hope of preventing injury to others.