Speaker 1: You are listening to Your Practice Made Perfect: Support, Protection, and Advice for Practicing Medical Professionals brought to you by SVMIC.


Brian:        Hello. Welcome to this week's podcast. My name is Brian Fortenberry. Once again, we're going to discuss a closed claim case and back joining us is J and Katy. Thanks, guys. Thanks for being here.


J. Baugh: Hey, Brian, it's good to be here.


Katy: Thanks for having us.


Brian:        It's always good to have you in here and be able to discuss some of the legal things that we have seen at SVMIC. But for those that maybe have not had the opportunity to hear some of the podcasts that we have done together in the past, one, I would recommend they go do that, but if not, at least let's start by telling our listeners a little bit about each of you. Katy, start with yourself.


Katy: Well, I'm an attorney in the Claims Department. Been here almost 13 years. I'm a Tennessee attorney as well, and so previously, I practiced privately.


Brian:        Fantastic. Thanks for being here again. J, tell us a little bit about yourself.


J. Baugh: I am also an attorney in the Claims Department, and I have been here for 18 years, and all of that time, I have been managing claims in the Claims Department.


Brian:        Well, fantastic. Thanks for joining us. It's always so informative when you're here, and today, we're going to be discussing a case that took 10 years to go to trial.


Katy: This is a marathon case.


J. Baugh: Yeah.


Brian: And I did not speak there. That's 10 as in one zero.


Katy: You are correct.


J. Baugh: That is exactly how long it took, yes.


Brian: What happened during this decade between the filing of the suit and when the case went to court is something we're definitely going to get into, but first, let's just get right into the heart of what's going on here. J, give us some of the background on what happened and why it took so long for this case to go to trial.


J. Baugh: Okay. Well, the facts of the case are pretty straightforward. It was a summer day in 2002. We had a 55-year-old gentleman that we'll call Mr. Adams. He was working on his farm. He jumped off the back of his truck, and he fell and injured his left leg. So, he went to the ER later that day, and he had complaints of left knee and ankle pain. And he was seen by an ER physician named Dr. Jones. Now, Mr. Adams had a history of bilateral knee replacements, and so he told Dr. Jones he had dislocated and reduced his left knee after the fall.


So, Dr. Jones did a physical exam, and he found some moderate swelling and tenderness. The films were unremarkable. So, Dr. Jones then contacted Mr. Adams' orthopedist, who we will refer to as Dr. Smith, and Dr. Smith recommended the patient see him in the office the next day. And so, Mr. Adams was discharged from the ER by Dr. Jones, who gave him instructions to follow up with Dr. Smith the next day.


Brian:        It seems as if this is fairly unremarkable as far as ER visits go, at least so far. I mean, it seems to be just a normal ER visit where an accident has occurred. Katy, how was Mr. Adams' diagnosis and discharge from the ER handled, and is it any different than any other way?


Katy: Mr. Adams follows up with his orthopedist, Dr. Smith, just like the ER physician told him to, so that's good. Sometimes, our patients don't do that.


Brian:        Right.


Katy: But he follows up two days later. By this point though, he's already developed a foot drop, a little unusual, so his symptoms are progressing. Dr. Smith diagnosed him with a nerve palsy and an impending failure of one of the knee replacements. So, he puts Mr. Adams in a brace, and they plan to revise the knee replacement surgery.


Brian: Okay.


Katy: So, the patient calls back two days later, so four days, I guess, after the ER discharge and reports some leg pain. So again, we've got an additional progression of the symptoms. The office, and it's not clear from my notes anyway who he spoke with at the office, but he was advised that pain is to be expected with this kind of injury. Don't be surprised. This is not unusual. I think that was Dr. Smith's last interaction with the patient. He shows up three days after that phone call at another ER, and at this point, he's diagnosed with compartment syndrome.


Brian:        Ah.


Katy: Very serious situation, underwent fasciotomies that day, had to have subsequent surgeries for resection of some necrotic tissue, and this ultimately caused him to have a permanent foot drop. So ultimately, the patient goes ahead and files a lawsuit against both doctors, ER doctor, Dr. Jones, and orthopedist, Dr. Smith, and the lawsuit's filed in July 2004. So, as J pointed out, July, I think, 2002-


J. Baugh: That's right.


Katy: ... was the injury.


J. Baugh: It was about two years after the injury before the lawsuit was filed.


Brian:        And so, it sounds like there is this progression of issues to the point of compartment syndrome, which, as you said, obviously can be very serious, and there is issues at that point. So 2002, 2004, but in the beginning, we talked about 10 years. So, are we talking 2014 then that this went to trial?


Katy: Yes. June of 2014. Interestingly, it was only tried against one of the two doctors, so only Dr. Jones ends up at the end of this marathon.


Brian:        Why in the world did it take 10 years to get there, and by the way, after it went to trial, what was the outcome?


J. Baugh: Well, the jury found in favor of Dr. Jones, the ER physician. He was the only one that went to trial. We'll talk about that a little bit more later. But the jury did find in his favor after a five-day trial.


So, why did it take 10 years for it to go to trial? Let's do a little bit of a timeline here. So first of all, within days of a lawsuit being filed, both Dr. Jones and Dr. Smith reported this claim to State Volunteer, which was absolutely the right thing to do. A point of emphasis here would be to timely notify the Claims Department at State Volunteer when you are served with a summons and a complaint. Don't let it sit on your desk for a couple weeks. Go ahead and call us right away so we can begin the process of getting a defense in place for you.


And so, once that happened, we retained local attorneys who defended the doctors, and then those attorneys met with the doctors. They gathered medical records. They went through the discovery process. They formulated a defense plan. It went as you would expect. And the defense attorneys also contacted potential experts, and they were able to find physicians who were very supportive of the care of both Dr. Jones and Dr. Smith, and they were willing to serve as experts at trial. So, all of that lined up just like you would expect. Written discovery was done. Plaintiffs were deposed, and so the trial was first set for trial in the first week of March 2008. Now, that's almost four years after the case is filed.


Brian: Right.


J. Baugh: Which seems like a long time.


Brian:        Right. It does.


J. Baugh: And it is, but it's not unusual. That happens.


Brian:        And I think that is something that people seem to be surprised with is that you think, "Okay. An event happened. I received a summons. I got sued. Within a couple of weeks, we'll go to trial, and then it will be all over," and rarely does that ever happen. Right?


J. Baugh: That's right.


Brian:        But 10 years is a little unusual.


J. Baugh:10 years is a bit of an outlier, but three or four years really isn't that much of an outlier. We do have some cases that go to trial quicker than that, but three or four years, unfortunately, is not all that unusual. So, it was set for trial first week of March 2008, and shortly before the trial, the plaintiff asked the court for a continuance.


Brian:        Okay.


J. Baugh: That continuance was granted, which is not all that unusual. Courts will usually grant the first continuance that's asked for. Whether it's the plaintiff or the defendant, they will usually grant the first time a party asked for a continuance. And so, the case was rescheduled for trial, but it wasn't rescheduled until March of 2009, another year later, which again, is not all that unusual.


Brian:        So basically, a continuance is just asking for a delay, correct?


Katy: A pause.


J. Baugh: Yes.


Brian:        Okay.


J. Baugh: A rescheduling of the trial date, and that can be for a number of reasons. It could be that it took longer to schedule the depositions of all the expert witnesses. It could be that an expert witness for some reason is unavailable, and so you ask for a continuance to reschedule the trial date. There could be a lot of reasons for continuing a trial date that's outside the control of the parties.


Brian:        But you obviously, they would have to have some type of reason to ask for a continuance-


Katy: Right.


Brian:        ... and to do that. But so, they ask for this continuance. Okay. Now, we're at March 2009. We still haven't gotten to 10 years. So, Katy, what kept pushing us back? What kept us going in that direction?


Katy: Well, in February 2009, the plaintiff voluntarily dismissed his case, and in this state in which this case was pending, he could do that without prejudice, which means he has the opportunity to refile it within a certain period of time, which he did. He refiled the lawsuit in January of 2010, so now, we are eight years out.


Brian:        Right.


Katy: The court promptly set the case for trial in June of 2014. An interesting delay there, and I'm not sure why.


J. Baugh: Yeah, I don't quite understand that either because if the lawsuit was filed in January of '10, you would expect that maybe the case would be set for trial in a year-


Katy: A year, a year and a half.


J. Baugh: ... or so. Right.


Katy: Certainly not unusual given the court's docket.


J. Baugh: But it's four more years before this case is set for trial.


Brian:        And that was kind of odd to me because I understand that you have to get on the docket at the court, and some courts and some judges, obviously, are busier than others. So, a year, you go, "Yeah," but four years.


Katy: Four years is a lot of time in a case that's really probably ready to go to trial. It's been prepared.


J. Baugh: Yeah, neither party really wants to wait that long because they got so close to getting ready to try the case, so that may have been the court's calendar. I don't know why it took so long.


Brian:        Something I picked up on when you were talking, Katy, that I know that in the last few years I have learned whenever things can be dismissed with prejudice and without prejudice. Explain that a little more because I was fascinated by that and really didn't understand it until I encountered some work I was working on and really figured out what that meant.


Katy: Sure. And so, it's going to depend on the state laws, basically. In some states, if you dismiss a case, it's a final dismissal. It's "with prejudice", which means you're prejudiced to refiling it, to bringing it back. Lots of cases, however, have dismissals without prejudice, which means the case can be refiled. It has to be within a certain period of time, six months, a year, but as long as the case is refiled it is as if that pause, now a second pause, never happened.


Brian:        So, is that fairly common, J? Do you see that quite a bit?


J. Baugh: Yes, we do, and in most of the states in which we write, plaintiffs are allowed to take what's called a non-suit without prejudice. And so, we do see that happen from time to time, and sometimes, it can happen right up to the day of trial. I actually had a case recently where it happened on the third or fourth day of the trial.


Brian: Really?


J. Baugh: The trial was not going the way the plaintiff wanted it to, and so he just took a non-suit during the trial, and in some states, they are able to do that up until the time the jury gets the case.


Brian:        Wow.


J. Baugh: So, the plaintiff can try the case, see how it's going. If it's not going so well, they non-suit the case, and they get a do-over.


Katy: Yep.


Brian:        That's interesting, and that is state by state like you were saying?


Katy: Yes.


Brian:        It depends on the laws there.


J. Baugh: That's right.


Brian: So, Katy, this went on for a while. Was there ever an attempt to maybe settle the case prior to this 10-year term?


Katy: Well, yes, in March of 2012, so here we're two years before the trial, the plaintiff actually asked the court to order the parties to mediation. So again, this is going to be a difference between courts and states and jurisdictions. Some courts will routinely order you, require the parties to attempt mediation. Others will never require you, will never send you to mediation unless one party asks for it. And that's what this plaintiff did here, asked the court to send the parties to mediation. The order for the mediation was entered, and the parties went to mediation. That was in June of 2012. Neither of the doctors consented to settle the case. At SVMIC, our physicians have contracts, our insurance policies are contracts, and there's a consent clause in the contract.


So, physicians have the right to decide for themselves whether or not they give their consent for us to try and settle the case for them. Here, neither Dr. Jones nor Dr. Smith wanted to do that. They felt their care was appropriate. They wanted to defend it even though it had taken now years, 10 years from the event, eight years from the filing of the suit, and they decided to withhold their consent, withheld any offers, and the mediation was attempted in good faith but obviously did not result in a settlement.


J. Baugh: That's right. The court can order the parties to go to mediation, and so if that happens, the parties will show up. All the attorneys will be there. One of the claims attorneys will be there. And so, we can be required to attend the mediation, but we can't be required to settle the case, especially if our physicians, our policyholders, do not sign a consent to settle.


Brian:        Sure.


J. Baugh: If they don't want us to settle the case, then we're not going to make an offer even if we have to go to mediation. And I've done that before where I've shown up at a mediation. I've told the plaintiff we're not interested in settling the case because the doctor doesn't want to, and so we go through the motions of starting a mediation. And then, we call it off because the doctor doesn't want to settle, and that's fine.


It reminds me of a mediation that I went to several years ago where the mediator was trying to get our doctor to settle the case even though he had not signed a consent to settle, and he asked the doctor, "Why wouldn't you just make some small offer to try to settle the case?" And the doctor said, "You mean other than the fact that I didn't do anything wrong?"


Brian:        Yeah.


J. Baugh: "Does there have to be another reason for me to not want to settle this case?" And so, we didn't make an offer that day. We didn't settle the case, and as it turned out, that one just sort of went away. Now, I've been in risk management seminars before where I've said this to our doctors. "You will often hear plaintiffs' attorneys say in their advertisements, 'You deserve your day in court.'"


Brian:        Right.


J. Baugh: And I tell our doctors, "So do you."


Brian:        Yes.


J. Baugh: "And if you want to go to court, and you want to defend your care, State Volunteer is going to be behind you in doing that, and we are not going to settle a case that you do not want us to settle."


Katy: And this is the perfect example of a case where we're behind you 100%, and we'll go the distance for a full decade to defend you.


J. Baugh: That's right.


Brian:        And it proves to be true, certainly, in this case that that was the right decision for Dr. Jones because the jury found in favor of Dr. Jones. But that being said now, there was Dr. Smith as well. Whatever happened against Dr. Smith as far as a lawsuit goes?


J. Baugh: Well, a couple of weeks before the beginning of the trial, the plaintiff decided to dismiss Dr. Smith a second time. They filed a non-suit that withdrew the case the first time, refiled it, and non-suited him a second time. That generally causes the case to go away against that particular physician. So, about two weeks before the trial, Dr. Smith, the orthopedist, was dismissed, and that's not all that unusual. I find that sometimes prior to a trial, the plaintiff wants to make the case as simple as possible, and that's easier to do if you don't have everyone on the defense side of the case.


Brian:        Right.


J. Baugh: So, he decided, "Well, maybe I think I have a better case against the ER doctor than I do against the orthopedist," and so he drops the orthopedist in an effort to make the case easier for him to explain to a jury as to what happened. Now, these cases often have an incredibly long lifecycle. They seem like a long time for us. I can't imagine how much longer it seems for a physician who's not used to being in the arena that we're in. I mean, 10 years is a long time no matter who you are. So, if it seems like a long time to us, I know it does for our doctors. But unfortunately, sometimes that happens.


Now this case, the doctors and their defense attorneys were ready to go to trial at the very first opportunity, which was back in March of 2008, four years or so after the suit was filed. But you know you have things like the plaintiffs filing motions and dropping the case and wanting a continuance and asking for mediation, and so you have actions of the plaintiffs. You might have a backlog of cases with a court's docket, and so all those things, unfortunately, can add up to a several-year delay in some situations.


Brian:        Well, as we get ready to wrap up here, what is the main lesson of this review that we've talked about today? Katy, start with you.


Katy: I think the main lesson is to just be prepared for a long fight. It's going to be longer than you want it to be, certainly, but it's a fight that we will stick with you for the duration. And, it ultimately will end one way or another.


J. Baugh: That's right. And speaking about how long some of these cases can take, it reminds me of a seminar that I was at a few years ago where an attorney was talking to some of our policyholders, and the attorney said, "To you, an emergency is 30 minutes. To me as an attorney, an emergency is 30 days."


Brian:        Right.


J. Baugh: So, if that's how long an emergency is to a lawyer, you can imagine how long the normal cycle of a lawsuit can be. It can take years, and so if you find yourself in that situation, be prepared, be willing to help the defense attorney any way you can to prepare for the case. But as Katy said, remember we'll be there to support you through the very end of the case.


Brian:        Well, that's a great note to end on. It really does show the commitment that SVMIC has to its physicians and its policyholders. Katy, J, as always, thanks for being here today to discuss this. Always enjoy having you here.


Katy: Thanks, Brian.


J. Baugh: Thank you for having us.


Speaker 1: Thank you for listening to this episode of Your Practice Made Perfect with your host Brian Fortenberry. Listen to more episodes, subscribe to the podcast, and find show notes at svmic.com/podcast.


The contents of this podcast are intended for informational purposes only and do not constitute legal advice. Policyholders are urged to consult with their personal attorney for legal advice as specific legal requirements may vary from state to state and change over time. All names in the case have been changed to protect privacy.