Medical Malpractice Cases from a Malpractice Attorney – Interview

Interview/med mal attorney: Don Forrest

© 2008 The Medical-Legal News

Donald R. Forrest was born Washington, D.C., in 1940, was admitted to the bar in 1966 in Indiana and in 1986 in Kentucky. He also has been admitted to practice before U.S. Court of Appeals, 6th and 7th Circuits, U.S. District Courts, the Southern District of Indiana and Eastern and Western Kentucky. His preparatory and legal education was at Indiana University (AB, 1962; LL.B, 1966). He was named “Trial Lawyer of the Year” by the Indiana Trial Lawyers Association in 2003. He is listed in The Best Lawyers in America, Personal Injury, 2005-2007; dforrest@sfb-law.com.

Don Forrest on Wrongful Death, Malpractice & Medical Review Panels.

Q: What prompted you to become interested in law?
A: When I was a kid — probably high school age — I got hooked on Perry Mason stories in the Saturday Evening Post. If I had to name one thing that ultimately motivated me, that would be it.

Q: Can you think of an especially memorable case?
A: I have probably tried close to 200 jury trials over the years. We had a drowning case where a little girl who was 6-years-old drowned in a municipal pool. We had a relatively new child wrongful death statute. Previous to that statute, Indiana law was just terrible for child death cases — [the damages were] what the child could have earned for the parents less the cost of maintaining the child — so you wound up having to pay somebody to kill your kid. It was just awful. You would settle cases for $25,000 because you couldn’t do anything with them. But this case came along and they wouldn’t settle. We did some focus groups. We figured out how best to try a child wrongful death case. The jury was out for about 35 minutes. We had asked for a $3 million award — and they came back and doubled it! We undersold everything; everything was low-key. We had a couple of photos of the little girl. She was very precocious and she had just finished the first grade. We had a couple of very, very short depositions. We had her kindergarten and first grade teachers talk about how remarkable she was. We did not have the parents brag about the kid; we let non-family members do it. It was a non-conventional approach. Our work with focus groups had convinced us there was a better way.

Q: How have caps affected your practice?
A: Two things happen in Indiana. We have a medical review panel process, which is a pre-court action. This is all under the auspices of the state insurance department It’s a non-binding opinion and you do not need experts. Odds are you are not going to get favorable opinion. They are running about 90% in favor of the healthcare providers.

Q: Do you think they get it right?
A: No. There’s a tremendous circle-the-wagons mentality.

Q: Why is that?
A: They are all Indiana physicians. They bend over backward to excuse the providers.

Q: What are the caps on? Just pain and suffering?
A: The caps are on everything. The cap is $1.25 million with the provider paying the first $250,000. But what has happened, if you make the question a little bit broader than just about caps, is, under the medical review panel process, because there’s no requirement for experts or anything, you have everybody and his brother filing proposed cases out there, with the idea that one of them might hit. The other side of it is that with death cases or catastrophic injury cases, it’s just totally inadequate compensation.

Q: But you are still doing these cases.
A: If you have any intention of proceeding (beyond the review panel), you need experts.

Q: Do the caps work?
A: Last Friday we looked up one of the local orthopedic surgeons, and he had 24 or 25 malpractice claims filed against him. And they had paid off in five or six of them. A lot of them were six-figures. One of them was for the maximum under the cap. Thirty years ago, before the malpractice act, locally, to have a malpractice case was rare. And now, everyone of them out there has had multiple claims against them (doctors, hospitals). That really has changed. And what happens in Indiana, if you are successful in getting a positive opinion out of the medical review panel — because the provider’s liability is severely limited — you settle that and then go to the patient compensation fund the state runs.

Q: So, it sounds like the caps don’t help to weed out bad doctors or cut back on lawsuit frivolity.
A: No, you still have doctors out there with two-dozen claims against them. Nothing happens to bad doctors —Indiana has a special malpractice insurance program for bad doctors. If they can’t get commercial insurance they can get state insurance. You can’t get rid of them.

Q: So you can sue even if the panel turns you down.
A: We have had some cases where we lost at the review panel but we had good experts and still were able to settle the case.

Q: Who pays into the public patient fund?
A: The healthcare providers each year have to pay a surcharge, or tax.

Q: Have you had any bad experiences with experts?
A: I once called up [an expert doctor]. I told him I would like to hire him as my case expert. He quoted a substantial retainer, which I sent to him. Subsequently, I went to meet with him and it turns out this guy’s a bozo. He’s been kicked off the medical staff of every hospital in the city. I am thinking, “What am I going to do now?” as I have a court case pending. The defendant [later] shows up with his expert. We run that expert and he has like 25 malpractice claims against him! I asked my paralegal, “Who’s got the better expert?”

Q: You use nurse consultants. Do you know what the various certification letters after their names mean?
A: I know what some of them mean. I know the LNCC and CLNC. But some of the others I am not familiar with.

Q: Do you care?
A: No. We used to run into this with safety professionals (accident reconstruction-type people) — there were a lot of organizations out there for the experts, and the only “requirement” was an application accompanied by a fee. And you got certified. And you got to use that agency’s letters behind your name. It was, in effect, meaningless. So, I don’t know how much of that stuff still goes on, but, bottom line, if it’s a real certification, it means something. But, I think a nurse who has some working experience — he or she knows a lot. They can be very helpful in giving us guidance on what’s a good case. But we have learned over the years not to quote a nurse to a doctor. They are not at all impressed by what nurses think. But, we [using the nurse review] ask the doctor “what if?” We do notice there can be pretty big differences in the way a doctor looks at a case and the way a nurse looks at a case, but a nurse who’s had some experience can be of a lot of assistance in trying to evaluate these cases and get us on the right track.

Q: What is a sure-fire way to win or lose a medical malpractice case?
A: How do you lose? Because they have more experts and better experts. I don’t know if there is any such thing as a sure-fire plaintiff’s case. If there is anything that even approaches it, it’s one where you can convincingly show that they altered the record. If you can show that they’re cheating, you’ve got a big leg up.

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