Personal Injury, Wrongful Death & Medical Negligence – Interview

© 2009 The Medical-Legal News

Andy Busald founded the law firm of Busald Funk Zevely, PSC, located in Florence, Ky., in 1974. He has practiced plaintiffs personal injury law his entire career, focusing on medical negligence, automobile collisions, wrongful death, large truck wrecks and insurance bad faith. He obtained his JD from the University of Kentucky School of Law in 1970. Andy is the past president of The Kentucky Academy of Trial Attorneys. He has been awarded the Peter Perlman Trial Lawyer of The Year Award by the Kentucky Academy of Trial Attorneys. The Northern Kentucky Bar Association awarded him the Lifetime Achievement Award in 2000 and the Distinguished Lawyer of the Year award in 2005. Andy has been honored in the publication The Best Lawyers in America and Kentucky Super Lawyers. Lastly, he has an AV peer review rating by Martindale-Hubbell, which is the highest rating an attorney can achieve.

Jay R. Vaughn is a partner with Busald Funk Zevely, PSC in Florence, Ky. He has been an attorney with the firm since 2002. His practice focuses primarily on personal injury, automobile collisions, wrongful death, large truck wrecks, nursing home negligence and medical negligence. He obtained his JD from Salmon P. Chase College of Law in 2002. In 2008, Jay received a BV peer review rating by Martindale-Hubbell, which is the highest rating eligible for attorneys in practice less than 10 years.

Personal injury lawyers Busald & Vaughn.

Q: Tell us a bit about your background, how you became interested in law and the area of law you chose.
Andy Busald: I wanted to be a lawyer since I was a child. I’m not absolutely sure why — maybe because my father was, although he didn’t practice. I chose plaintiff’s work (there was never any other choice for me) because I wanted to champion the cause of the downtrodden, disenfranchised, disabled and helpless.
Jay Vaughn: I became interested in the law in college while competing for the debate team at Murray State University. I then caught a break the summer before my junior year of college by landing a law clerking job with Busald Funk Zevely. The rest, as they say, is history.

Q: Please describe a case or two that were memorable for some reason. Were they big victories, etc? Was there another reason they were memorable?
Andy Busald: Tyler v. TWA (1986) was my first million-dollar verdict. It involved pre-statutory dram shop against the airport, TWA and American Airlines. They allowed one of their executives to drink on the job and he hit a family from Michigan, head-on, on the interstate. Not only was it memorable because it was a milestone, but also because it was essentially one of the first dram shop verdicts in Kentucky.
It was actually pre-Claywell v. Fraternal Order of Eagles, which was proceeding on a parallel track and ultimately was the published opinion.
The second case was more recent with my law partner, Jay Vaughn, in which we got a $40,000 verdict against State Farm in a case where the offer was $10,000. This case involved minimal property damage, contested liability by the UIM carrier, three prior auto accidents and four subsequent auto accidents.
As you can imagine, causation was quite an issue. However, justice prevailed. This was the worst case I ever took to trial in my career, but was one of the greatest victories.
Jay Vaughn: I have to agree with Andy that the trial against State Farm was very memorable, not only because it was a plaintiff’s victory, but also because we overcame almost impossible odds — we thought we had only a 25% chance of winning as our client was a prescription drug seeker and not likeable.
My other most memorable case had to be my very first trial. It was a sexual harassment-retaliation case that another attorney in my office was unable to try due to a conflict. I agreed to try the case in Eastern Kentucky by myself. My client, who was female, was sexually harassed when her breast was grabbed by her lesbian supervisor. After complaining of the harassment to the company’s owner, she was fired by her lesbian supervisor at the owner’s instruction. I was thrown for a loop during trial when my client’s sister, who had just finished testifying, and who claimed she would testify in her favor, patted the defendant owner on the back as she exited the courtroom. It wasn’t until we took a break that my client decided to tell me that she and her sister had been feuding for over a year before the trial. Despite that, the jury still returned a verdict in my favor, which was much more than the offer, especially after the judge awarded my attorney fees. Unfortunately, it was “paper verdict” as the company went bankrupt!

Q: What’s a sure-fire way (or two or three) to win a med mal case for the plaintiff?
AB & JV: We didn’t know that there was [a sure-fire way] when the Kentucky Trial Court Review says that plaintiffs only win 23% of the time. However, case selection is probably the most important feature. The plaintiff has to be very likeable and seriously injured. Additionally, there has to be some “dirt” on the target defendant. Otherwise, the “it was just an accident by a good doctor who was trying his or her hardest” defense prevails. There are three things that are an absolute must: 1) preparation, 2) preparation and 3) preparation.

Q: What’s a sure-fire way (or two or three) to lose a med mal case for the plaintiff?
AB & JV: Other than the opposite of the above, 1) taking a case in a small town against the local doctor, especially if you don’t have well-respected and influential local counsel, 2) failure to carefully research and select your expert and 3) failing to recognize and acknowledge the problems with your case to the jury.

Q: Do you feel that a lot of medical malpractice suits are frivolous? That seems to be the popular notion these days.
AB & JV: Not really. As you know, a frivolous lawsuit is either one brought against you or one brought by someone other than you. With an average cost of $100,000+, an average time investment of 1,000+ hours and a statistical probability of success of less than 25%, there are very few lawyers who will want to enter the lion’s den just for the sport of it.

Q: Generally speaking, do you think “good” med mal cases settle? That is often the perception.
AB & JV: Yes — when the defendant, the defense attorney and the med mal carrier usually recognize the risk of trying a case with strong liability and substantial damages, while at the same time the plaintiff’s attorney has enough experience to know that many good cases can still result in a verdict lower than the offer.

Q: In your cases, do you use record reviewers, life care planners, subrogation experts, damage experts or expert witnesses? Please talk about what may have gone right, and wrong, with any of the aforementioned litigation support people.
AB & JV: All of the above. Disaster can occur when you fail to educate your experts on the opinions of everyone else (both plaintiff and defense experts) as well as any problems with the case.

Q: A lot of nurse consultants who review medical records often have acronyms after their names like LNC, CLNC, LNCC, RLNC, ALNC, etc. Do you know what these stand for? (It’s OK if you don’t — don’t go look it up).
AB & JV: We didn’t until Rose Clifford educated us. Now we do. Thanks Rose!

Q: Do you find experts and other litigation consultants usually to be easy to work with, or do you find them to be aggravating? Do you think they teach you the case, or do you feel you wind up teaching them the case?
AB & JV: By and large we have found our experts easy to work with. However, we do spend a great deal of time preparing before we talk to them and preparing them for their testimony. Whether or not the expert requires this amount of preparation by us, ultimately we have to feel comfortable with our case, including our experts, and this preparation puts us at ease. We will say that many of our experts have educated us on many nuances with the case, which further strengthens our knowledge and our position on liability.

Q: What’s the most aggravating, or pleasant, part of hiring consultants to help in litigation?
AB & JV: The most aggravating is experts who do not review all the materials you have provided them and who fail to timely acknowledge receipt of these materials.

Q: Where do you see med mal, PI and any other such health-related litigation headed in the future? Arbitration, mediation, etc.?
AB & JV: Hopefully, trial by jury will always be available because (much like having a well-trained, well-financed and well-equipped army) few treaties have ever been negotiated. We think that more cases will turn to alternative dispute resolution as long as “trial by jury” still remains an option. Hopefully the two recent Kentucky bad-faith verdicts arising out of med mal cases will encourage more “good faith” negotiations, offers and compromises. [See bad-faith story, Pg. 18].

Q: Talk briefly about anything that people in general do not realize about high-stakes civil cases (emotional trauma, financial strain, etc.).
AB & JV: Unfortunately, the average citizen believes that most cases result in huge verdicts and large payouts, which, of course adds to the “litigation crisis” mentality. Dog-bites-man does not make headline news; man-bites-dog does. Unfortunately, the newspaper does not report all the low verdicts or zero verdicts — perhaps because there is no sensationalism involved.
Additionally, most people’s exposure to “the system” involves traffic cases and matters that are resolved in short order. Few people understand the time, money and emotional investment involved in plaintiff work, especially complex litigation such as med mal. Is there any other business or profession where you are only paid if you are successful?

Q: Talk briefly about what makes a good attorney, how to chose a good attorney, etc.
AB & JV: Honesty, integrity and hard work. Many people think they want a barnyard dog or aggressive fighter, when what they really need is a diplomat, consensus-builder and negotiator.

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