For every 100 health care liability cases filed, only one results in a victim's verdict. Six result in a defense verdict.ⁱ Why? As a healthcare victim's lawyer you lose because you fail to overcome defenses.

The secret to winning healthcare liability (healthcare negligence) cases is overcoming defenses. You must anticipate and overcome each and every defense the doctor and hospital raise. Remember, there is no penalty for raising "frivolous" defenses. The more the defendants can raise, the greater the likelihood that one will stick in the jurors' minds.

Here's an example. "She should have gotten a second opinion." This is a wholly specious defense but jurors internalize it because it supports their worldview that "This would never happen to me because ..." That's called defensive attribution. In failure to diagnose breast cancer cases, female jurors simply conjure this defense even when not raised directly by the doctor. But the doctor will indirectly raise it.

You must overcome the fake "second opinion" defense by forcing the doctor to admit in his deposition the patient had no duty to get a second opinion. But that's not enough. You must file a motion in limine barring such testimony. And you must demand a jury instruction on this as well.

Now you "get it." You must overcome defenses, not just meet them.

There are eleven defenses in a healthcare liability case. You have to overcome all of them. (1) No breach of the standard of care. (2) The patient had an anatomical anomaly. This is another way of saying no breach of the standard of care, but it confuses jurors and confusion always favors the defendants. (3) Independent intervening cause. In other words, somebody else, possibly the patient himself, caused the injury. (4) The medical records don't reflect what actually happened. (5) Unforeseen complications arose, or these were normal complications. (6) Honest mistake of judgment. (7) No harm was intended. Not a legal defense, but an effective practical one. (8) The "noble physician" defense, akin to no harm was intended, but subtler. (9) No harm was caused by anything the doctor did or failed to do, "He was gonna die anyway." (10) She should have gotten a second opinion. (11) It was the patient's own fault. Really it was.

The reason you don't overcome these defenses is because you don't anticipate them. You think the jury will use "common sense" and "see right through" the defendant's nonsense defenses. Not so. Juries are not on the victim's side. They are clearly biased in favor of healthcare workers. And the law favors them too.

Here's an example: Doctors and the hospital left a surgical instrument inside the patient's abdomen during surgery. Seems like a clear case of healthcare negligence, right? No, because the defendants always have defenses and it only takes one defense argument to win. Defenses: We X-rayed him after the surgery and saw the instrument, but we thought he was simply laying on top of it, not that it was inside him. Overcoming defenses: It was a breach of the standard of care to do this type of X-ray; the standard called for a side view too. The defendants just wanted to save money by hurrying up the surgery and left the instrument inside of him and they just wanted to save money by not doing the proper type X-ray to discover their negligence. Besides, it was a clear breach of the standard of care to operate on a man who is laying on an instrument - and our expert witness has explained to you why doing so shows even more negligence and greed on the defendant's part.

You lose because you allows the doctor too much "wiggle" room to make excuses (defenses). You must force him into a defensive position where he can't move. That begins with the medical records.

Lock the defendants into the medical records. Ask about every word, every abbreviation, and every notation. Get the doctor to read out loud what it says. Here's why. The nurses' notes say, "No pulse." The doctor will read that as, "Normal pulse." You must ask him what the words he has used mean. Never assume you understand his meaning of a word. Next, ask whether it accurately reflects what happened. Remember, a doctor will always read and explain what the notation says, but come back later and say, "But that's not what really happened," unless you lock him in from the very first.

You lose because you allow doctors to get away with a subtle form of lying, in particular, their use of the term "complication."

Since 1981 the AMA Code of Ethics require a doctor to tell the truth "even in the face of a potential lawsuit."ii However, the rules do not require telling the whole truth, only that which provides the patient with enough information "so the patient can make a proper medical decision about what to do next." This loophole allows doctors to claim the existence of a "complication" without telling whether this was an avoidable complication.

In deposition, you must ask the doctor to explain the difference and ask this: "Doctor, this was an avoidable complication wasn't it?" If he waffles, keep questioning, "Really, why?" Always keep asking, "This complication happened because you were trying to save money or time, right?" Or this, "You overlooked this complication because you were in a hurry, right?"

Never think that asking about defenses somehow tips off the defendants to defenses they never thought about. Defense lawyers and insurance companies have plenty of cases just like yours where specious defenses were raised and they won.

You must learn not only the standard of care, but must learn the standard defenses for this medical condition or procedure and have a clear plan to overcome these defenses. The best way to do this is find as many cases as you can that involve this same condition/procedure. Order a computer search from a jury verdict publisher and be sure to ask for defense verdicts! Too many victim's healthcare lawyers only want victims' verdicts thinking their only need is to find good experts and high verdicts to shame the other side into settling. It's false economy. Knowledge of defense verdicts is actually more useful in preparing to overcome defenses.

Here's an example. Consider a seemingly straightforward case: The neurosurgeon performing back surgery (fusion) operated at the wrong level. But if the case actually goes to trial, doctors win forty percent of these cases. Why? Because healthcare victims' lawyers can't overcome two common defenses. The first is anatomic anomaly. The second is the classic, "I didn't do anything wrong, he did." Precisely, the neurosurgeon blames the radiologist for not telling him where to operate, or telling him wrongly.ⁱⁱⁱ

Never brush aside a defense, no matter how silly. If a piece of gauze is found deep in the patient's intestine, the doctor will insist the patient swallowed it or shoved it up her rectum herself - defenses that make no sense and insult the patient. But juries believe them, especially the anatomic anomaly defense and the blame the victim defense.

The anatomic anomaly defense must be met head-on. The defendant must be confronted with an array of anomalies shown in standard textbooks and medical literature and vigorously examined about why he did not recognize this anomaly and failed to plan how to deal with it. Gall bladder surgery lawsuits have become a struggle over how to deal with the anomaly defense. After a doctor is sued, he suddenly becomes an expert on anomalies, it seems.

The blame the patient defense must be attacked in this way, "Doctor, what are the three things the patient did that were the real cause of this outcome?" After he names something such as, "Well, she was a cigarette smoker," ask, "Gosh, that's a lot, any more?" His follow-up answer will tell the tale. It will produce his real defense or sound so silly it can be transformed into a theme for trial. "He says she was so fat he could not reach inside her to find the missing sponge!" I actually had a surgeon offer that "defense," after which he quickly blamed the sponge count failure on the nurses. But he was a macro-liar. In fact, he took no actual part in the surgery. It was done by a resident while he sat in the room reading a newspaper.

Listen carefully when defense counsel interrupt a deposition with speaking objections. You are close to bumping into a defense the other side does not want you to know about. For example, if you ask the cause of death and the doctor repeats what's written on the death certificate ("cardio-respiratory arrest") and defense counsel seems either too eager to agree with that or very defensive ("That's what it says, Mr. Plaintiff's Attorney!"), you must probe behind the certificate. Get the doctor to explain the sequence that led up to the patient's death. He must be made to explain in excruciating detail the cause of death. "Really, and then what happened?" is your mantra. He's supposed to know, isn't he?

Never allow a doctor to wriggle away from his own conduct, leaving others to fight for him. You must ask the one question that locks him into an immobile defensive position. "You have had several years to ponder this question and I know you are concerned with the outcome of this trial. If you were faced with a patient today with the exact same set of symptoms that the plaintiff had four years ago when he presented himself to you, would you do anything differently than you did then with regard to the diagnosis and treatment of the patient?" Never let him avoid or qualify his answer. The answer must be no. Simply keep asking the question in a different way until he says no.

Defensive attribution must be anticipated and defeated. Weaken a defensive attribution problem by placing it in front of the jury early. "They say that because the patient smoked cigarettes, she was likely to have this so-called complication. But they didn't tell her about it!" (The she-was-a-smoker defense resonates with health conscious jurors who eagerly want to fix blame on the patient.) In fairness to doctors, if the patient was truly at fault, don't take the case - although I don't know any lawyers who would take such a case "just to see what happens."

You must overcome an array of defenses in even the most straightforward case. Here's an example. Facts: Heart by-pass surgery brings unusual pain in the left flank. An X-ray taken three days later shows a laparotomy pack (sponge) left behind. Clear liability?

Think again; there are always defenses. Defense: No breach - it was the nurse's duty to count sponges, you should have sued them or the hospital. Second defense: No injury; thoroscopy did not add to the patient's overall pain. Third defense: The by-pass surgery saved the patient's life. (Noble physician.) Overcoming defenses: Oops, that's right. There really is no Captain of the Ship doctrine anymore so sue the nurses/hospital and keep them in the suit. Don't settle with one defendant just to fund the rest of the case. To overcome the so-called "no injury" defense, force the defendant to view and explain a thoroscopy video during his deposition just to "show how it's done."

Overcome the "noble physician" defense by forcing the defendant doctor to explain how much he charged for his services that caused injury and ask, "And this happened because you were in a hurry to do something else or to save money for yourself or the hospital, right?" (One neurosurgeon I know has posed the penultimate medico-legal question: "Why is there never enough time to get it right the first time, but always enough time to perform repair/corrective surgery?")

Recent trial strategy has adopted the so-called "Rules of the Road," which in simple terms means taking away from the doctor the notion of "honest error" or "honest judgment" and getting him to "agree" on a "rule" (standard of care) that "everyone" agrees upon. This is vital to overcoming the victim's biggest hurtle, namely proving the standard of care. You must find medical literature that supports your position. The doctor must never be allowed to contend he acted reasonably. Instead, he failed to follow the "Doctor Rules of the Road," and caused this result. Over and again, use the term "doctor rules," to drive home the point that this case is not about "lawyer" rules, it's about a doctor who was in too much of a hurry to follow his own rules.

In recent years, doctors have re-emphasized the lack of causation defense because it relieves stress on jurors - they know the doctor violated his own Rule, but they still don't want to give your victim any money (she didn't earn it, after all.) So jurors quickly accept the no causation defense because it allows them to say, "Well, she just didn't prove her case." (You did, you just didn't make them angry enough to do anything about it.)

The best way to overcome the causation defense is to get causation from the mouth of subsequent treating physicians, including those who would never point the liability finger at a colleague. Because lack of causation is such a powerful defense in failure to diagnose cancer cases, do not take such a case unless at least one subsequent treating doctor will (reluctantly) endorse causation.

In overcoming defenses, one expert is not enough. You must have at least two standard of care experts - one to "teach" and one to "preach." It adds expense, but gives a built-in psychological advantage. The defendant doctor will have to hire two experts to effectively lie for him - one of them will likely falter because he has actually testified differently in another similar case. (Dirty secret: Defendants use the same experts over and over.) But your case will not turn on expert testimony, despite the law's emphasis on experts saying the magic words of liability and causation.

Jurors actually ignore both sides' experts and reach their decision on their personal beliefs (worldview) but give slightly more weight to the practitioner with more hands-on experience than any medical school professor. Don't be afraid to use just one expert to drive home just one point, usually causation.

You must understand what is behind the array of defenses against you in order to overcome them.

Doctors offer fake defenses (which is really a form of lying) because they suffer from a condition called Medical Narcissism. In simple terms, it means they spend most of their psychic time thinking about themselves, even when "caring" for patients.^iv When Medical Narcissists make a mistake, they quickly rationalize and during this period they engage in seven different "excuses." You must know them all because they will linger and turn up as defenses. They are:

* Euphemistic language. Failure to see cancer on an X-ray is called "an unappreciated lesion." * Advantageous comparison. "Telling what really happened will only make the patient feel worse." * Distorting the consequences. "Well, it is a blessing in disguise." * Displacement of responsibility. "It was really the hospital's fault too." Diffusion of responsibility. "The nurses were supposed to remind me." * Attribution of blame. "It was the patient's own fault." * Fragmentation. "I do more good than bad."

Fragmentation gives the doctor a kind of moral justification for doing wrong and getting away with it and expecting others to help him. It's no secret that the poet/writer Robert Louis Stevenson, who was always sick, wrote the novel Dr. Jekyll and Mr. Hyde - he even wrote a poem about a medical liability case!^v

Turn the doctor's own Medical Narcissism against him. Frame your questions to allow his narcissist toxins to surface. "Well, doctor, you really didn't tell the patient what happened because you thought it would only make the patient feel worse, didn't you?"

Medical Narcissism is behind the so-called "malpractice crisis," because doctors will not admit their mistakes, apologize and offer fair compensation. Instead, they evade responsibility. Seasoned healthcare victims' lawyers know the following lessons from bitter experience - all designed to bolster a so-called defense.

Never expect a doctor to tell the truth - although he would if he caused the same injury in a motor vehicle accident - when charged with healthcare negligence. Expect fetal monitoring tapes to disappear. "Late" entries appear in medical records - out of sequence. Partners shade the truth. The hospital pathologist will always side with the hospital first and the doctor second, and the patient third, regardless of scientific evidence.

Fake science appears as mainstream knowledge because it was mentioned in the medical literature. "The lacerated esophagus was caused by the patient's own coughing, really it was, because it was identified in the medical literature years ago." It's okay to use these fake defenses, even near fraudulent defenses, insist doctors, because of all the good they do everyday.

Your job as a victim's healthcare liability lawyer goes beyond seeking compensation for this victim. By constantly making doctors play by the Rules, by challenging their fake and overblown excuses raised in the form of defenses, you are guarding the public's health and upholding the value of human life. You just do it with a law license, not a medical license.