The world of legal process, including medical malpractice litigation, is not known for being particularly swift. Yet in the wake of COVID-19, medical malpractice professionals say the industry’s reaction has been remarkably quick and thorough. Here, four experts in medical malpractice discuss how COVID-19 is shifting, shaping, and yes—even advancing the field.
HAS COVID-19 AFFECTED MEDICAL MALPRACTICE CASES DIFFERENTLY THAN OTHER TYPES OF LITIGATION?
Medical malpractice clients and experts work in hospitals and sometimes with COVID patients, so we do need to be more mindful about health considerations. And that means doing more things remotely, with less face-to-face contact. —Amy Forbis
Our healthcare clientele is very savvy about safety requirements, so they recognize the need for us to make the changes to work and connect with them remotely. If we had clientele working outside of healthcare, [these changes] may have been more of a struggle. —Nancy Pugh
HOW ARE MEDICAL MALPRACTICE LEGAL DEFENSE TEAMS CREATING EFFICIENCIES DURING COVID-19?
If you’d asked me 10 years ago, very rarely would I have an expert witness testify remotely. With the adaptations in technology that we have now, we are able to take an expert deposition remotely, and it’s been very effective. —Amy Forbis
The courts had several months of inactivity, so there is now a backlog in the court system, which may complicate getting cases into trial in the immediate future. To address this, we’re looking at different alternatives to a 12-person jury trial, whether that’s a private trial with a six-person jury or another solution. Our top priority is taking care of our insureds. We want to make sure they aren’t waiting to get their cases resolved. —Nancy Pugh
We’re seeing an increasing shift toward creating custom anatomical visuals and demonstratives in medical malpractice cases to help educate the jury and simplify the medicine. With the uptick in virtual remote testimony, expert witnesses need to practice making annotations to demonstratives online. To be more persuasive, expert witnesses need to be able to “show and tell” their opinions remotely, and practicing is key. —Noah Wick
WHAT SHOULD MEDICAL MALPRACTICE DEFENDANTS KNOW ABOUT HOW THEIR DEFENSE TEAMS ARE APPROACHING CASES NOW?
Whenever possible, we want to be present with our client for a deposition, sitting in the same room so that we can be a physical presence and comfort to them. Right now, it isn’t always doable, in part because of travel restrictions. But we have seen that we really can do discovery and depositions remotely. We’ve had to embrace this new reality, and we’re improving the process and seeing that it can be quite effective. —Amy Forbis
We have a culture of understanding that litigation is personal for our insureds, and even in the current environment, our clients are still able to connect with us and their attorneys. Instead of connecting in person, we’re doing it on a screen, but it seems to be working well. —Jim Beatie
HOW ARE NEW PROTOCOLS FOR JURY SELECTION AND EVIDENCE REVIEW AFFECTING MEDICAL MALPRACTICE LITIGATION?
We’re seeing more time in planning and preparation. Any medical exhibits we want to use need to be prepared so they can be presented to jurors on a remote platform, and using that technology takes more time. —Amy Forbis
Remote technology was occasionally used during the discovery portion of litigation or for remote witnesses at trial, but that has drastically changed since the pandemic. Now a few areas are even selecting jurors using Zoom, with breakout rooms. During virtual jury selection, we are observing prospective jurors becoming more revealing and candid when they are in their own homes than when they might be in a courtroom. —Noah Wick
WHAT OPPORTUNITIES ARE EMERGING FOR MEDICAL MALPRACTICE LEGAL DEFENSE TEAMS IN THIS NEW ENVIRONMENT?
The first time I presented a witness before video technology was in a courtroom in King County 10 years ago, and it was a huge deal. COVID-19 has increased access to the remote platforms and made it all more comfortable for us, and more comfortable and acceptable for jurors as well. With good technology, a good connection, and good audio, jurors can assess experts and credibility very effectively. —Amy Forbis
COVID-19 has made everybody reevaluate the exposures in their cases. The outcomes of negotiations are more unknown; therefore, people are more willing to move forward and be more realistic with their financial expectations. —Nancy Pugh
Courthouses were never set up for remote-access technology, but it’s now becoming the norm. We used to worry about having experts testify remotely, and now I’m not sure we’ll go back to having experts spend so much of their time traveling. —Jim Beatie
There has been national concern about whether jurors would be attentive to the evidence being presented when viewing it on a screen, as opposed to live in a courtroom. But today, jurors are accustomed to viewing things on a screen. Jurors are more attentive, paying closer attention to detail, and able to listen to testimony effectively. —Noah Wick
WHAT WILL BE COVID-19'S MOST ENDURING EFFECTS ON MEDICAL MALPRACTICE CASES?
I think even post-COVID, lawyers will embrace doing certain parts of litigation by remote access, just for the sake of efficiency. —Amy Forbis
If the pandemic had happened a few years ago, I don’t think we would have been able to pull this off as well as we have. We didn’t have the technology that we have now. We’re probably spending more time preparing for cases now, but also becoming more efficient as we continue using these technologies. —Jim Beatie
I’m on the advisory board of the Online Courtroom Project, a seasoned group of judges, trial attorneys, and trial consultants working toward more efficiencies in courtroom technology across the nation. Since the re-opening of courts, each county is handling court proceedings differently, with and without technology. One overall consistency is how much [the pandemic] has forced the legal system to adapt and advance with the use of today’s technology. —Noah Wick
Jim Beatie is a claims manager for Physicians Insurance with more than 30 years of experience in medical malpractice litigation.
Amy Forbis is a medical malpractice attorney and director with Bennett Bigelow & Leedom, P.S. She is regularly selected to the Washington Super Lawyers list (most recently in 2020), as well as to the Washington Super Lawyers “50 Top Women Lawyers” list.
Nancy A. Pugh has been handling medical malpractice litigation claims for more than 26 years. She has spent the last 20 years with Physicians Insurance and now serves as its Director of Litigation Management.
Noah Wick is National Director of Litigation Consulting at Trial Exhibits, Inc. His principal activities involve focus groups and mock trials, theme development, visual strategy, and impression management.