THE MEDIATION OF CATASTROPHIC INJURY MEDICAL MALPRACTICE CASES

By: Steven B. Tannenbaum, Esq. | September 2020

In order to reach a fair and equitable settlement when mediating catastrophic injury medical malpractice cases, it is essential for the respective parties to provide the mediator with detailed medical chronologies (timelines) and medical briefs in order for the mediator to properly prepare for the hearing. Additionally, these cases very often require the preparation and analysis of life care plans and economic projections, preferably on behalf of both sides in order to provide the mediator with accurate information as to any economic loss which is being claimed, as these issues are often in contention. As medical liens almost certainly will be an issue, both sides should attempt to provide the mediator, as well as each other, with the current amount of any liens and the position of the lien holder with respect to compromising any liens in order to facilitate the settlement. Due to the extensive amount of materials that will be discussed during the mediation, sufficient time should be scheduled so that each side has the opportunity to present their respective cases. In the event that there are multiple defendants, each defense attorney should be prepared to primarily discuss allegations against their respective client(s) 

Before delving into the recommended presentation of counsel for all parties and how the neutral can bring the sides to a mutually agreeable settlement, I would like to first present a case study involving the amputation of a leg in a diabetic patient.

Catastrophic Injury: The Leg Amputation Case

Healthcare practitioners, who are primarily responsible for monitoring diabetic patients, face numerous medical challenges. Diabetes is a group of metabolic diseases characterized by high blood sugar levels. It is customarily diagnosed by a fasting blood glucose test. Once the diagnosis is established, the healthcare practitioner must be on the alert for the development of well-known complications that can include development of the “diabetic foot,” causing loss of sensation due to nerve damage and could result in numbness, burning and/or aching of the foot. Additionally, patients with a “diabetic foot” may not be cognizant of foot injuries due to poor blood circulation which might heal improperly. This could lead to the development of infection, ulcers and gangrene, resulting in amputation of the toes, foot and even the leg if not timely diagnosed and treated.

Medical Management of the Case

In particular, the appropriate management of such a patient includes the following:

1. A proper description of the ulcer; 

2. A properly documented examination including a notation of whether the ulcer “probes to the bone,” – a very standard part of an ulcer examination and a clinical sign of the presence of osteomyelitis;

3. A proper grading of the ulcer;

4. Documentation of proper attention to the patient's nutritional status;

5. A culture and sensitivity test, a standard procedure without exception, which helps in determining proper antibiotic usage;

6. Proper monitoring of the progression of the ulcer by having the patient return to the office on a regular basis;

7. Information imparted to the patient by the healthcare provider that, if there is a documented neuropathy, the patient's perception of pain will be diminished, so that the patient will not conclude that the lack of pain is an indication that his or her condition is improving;

8. Standard in office testing to monitor loss of pain sensation;

9. The implementation of some sort of off-loading device on a diabetic ulcer (i.e. padding, numerous types of offloading shoes and casts); and

10. Early endovascular intervention by referral to a vascular surgeon, before circulation becomes progressively compromised.

In the event that some or all of these procedures are not performed, the patient is at severe risk for gangrene and amputation or multiple amputations. Obviously, the management protocol of such a patient is to prevent the disease process from advancing to this point. In the event of an amputation under the circumstances, litigation is likely to ensue. From the perspective of the neutral, plaintiff's counsel should be prepared to demonstrate that although the plaintiff had a difficult condition to manage, proper management, as set forth above, would have prevented catastrophic injury to the plaintiff.

Defense counsel needs to demonstrate to both plaintiff's counsel and to the mediator that the healthcare provider was cognizant of the possibility for the development of serious conditions which could lead to a possible amputation and that the healthcare provider properly managed the patient's difficult medical condition, based upon the healthcare providers records, testing, observation and monitoring. In the event that the patient was non-compliant, or if the patient was simultaneously being treated with other healthcare providers and there is an absence of documented complaints, these facts should be highlighted to the mediator.

The Mediation Involving Multiple Defendants

In a catastrophic injury case, more often than not, there are multiple defendants each of whom will likely assert a separate defense based upon the merits of the claim against them individually, the role that each defendant played in the treatment of the plaintiff and whether or not liability is based upon independent acts of malpractice or upon claims of vicarious liability. It is of great value to the neutral for each defendant to set forth their individual defenses in the pre-mediation brief so as to assist the mediator in achieving a fair and equitable resolution, not only between the plaintiff and the defendants, but between the defendants themselves as well.

Preliminarily, as set forth above, plaintiff's counsel will lay out for the mediator the claims against each defendant, as well as the issues of causation and damages. Following this presentation, each individual defense counsel will be given the opportunity to address the claims against his or her client(s). These presentations will be given in front of all counsel. The mediator should then ask for a global demand from plaintiff's counsel against all of the defendants and then meet with each defense counsel solely. 

The first question that generally arises, regardless of the plaintiff's demand, is whether defense counsel have agreed to an apportionment of the total settlement to which they are authorized to contribute. At this point, it is common that defense counsel will disagree with each other as to the proportion of their respective client's liability. So the first order of business for the mediator is to work out an agreement on this issue amongst defense counsel. This may require that the mediator meet individually with each defense attorney several times in order to reach an adequate determination. Frequently, defense counsel will only be willing to agree to pay an agreed upon percentage of the settlement up to a certain dollar amount, so this issue will be addressed by the mediator as well. Plaintiff's counsel should expect that this is likely to take some time, but that it is necessary for the mediator to bring the matter to an amicable resolution.

The next step is to address the total demand made for a global settlement against all defendants. Plaintiff's counsel generally is more concerned with the amount of the total settlement rather than the percentage that will be contributed by each defendant. That will only become necessary if and when the global settlement is reached and closing papers are required to be executed.

The defendants can present a united effort in negotiating a global settlement, which will become the next item to be addressed by the mediator. The mediator will ask defense counsel to submit a global offer to respond to plaintiff's counsel's demand and will then ask to meet with plaintiff's counsel. The mediation can then proceed in an orderly and efficient manner, with the neutral meeting with each of the sides individually until a settlement can be achieved.

Conclusion

The benefits of resolving the catastrophic injury case through mediation are well known to all practitioners. The cost of going to trial will usually involve the payment of large amounts of money to at least two or three doctors, life care planners and economists. This is in addition to several weeks of trial preparation and actual trial time in Court. When the mediator is properly supplied with this information in a clear and concise manner and counsel are properly prepared to address all of these issues, meaningful discussions can occur which can lead to a more just settlement. 

_____________________________________________________________

Steven B. Tannenbaum, Esq. is a member of NAM's (National Arbitration and Mediation) Hearing Officer Panel and is available to arbitrate or mediate cases throughout the New York metro area including Long Island.  Mr. Tannenbaum has served as a highly respected and skilled attorney who has handled complex litigation involving medical malpractice, dental malpractice, legal malpractice, insurance coverage, commercial cases and personal injury disputes. He has the ability to arbitrate or mediate the most complex matters and is persistent in his effort to assist the parties in reaching and finalizing a resolution.