Interview/Attorney: Doug Miller
© 2009 The Medical-Legal News
Edward Douglas Miller, JD, is a general practice attorney in Cynthiana, Ky., a small town. He does plaintiff medical malpractice cases and personal injury cases for both plaintiff and defense. He has been in practice for 30 years and is a graduate of the Brandeis College of Law at the University of Louisville.
Personal Injury Defense & Medical Malpractice Lawsuits
Q: How did you become interested in law?
A: I watched trials when I was a kid. My mother ran a beauty shop downtown and I was in town all the time. I went to Eastern (Kentucky University) and majored in political science and then I went to the University of Louisville law school. When I was in law school I had a job clerking for a firm that primarily did personal injury work. They also did a lot of worker’s comp work. I came close to staying there, but had a good opportunity here to practice. There were not a lot people in the small town law aspect of doing PI work.
When you’re in a general practice of law you do everything. I’ll work on a medical negligence case for five minutes and then go draw up a will or run a title. But these people become your clients, then they go out and get into a car wreck and call you. I am in a good position where I don’t have to refer the cases on. It’s something I can do. And I was fortunate to get some pretty decent cases early in the game and was successful. I didn’t have my failures until after I had some successes! I did a lot of criminal work, too. I did some divorce work about the first five years of my practice. I still do social security disability work and still do some criminal work. For about 30 years now I have done (PI) defense work for Farm Bureau (an insurance company), which kind of puts me on the other side of the fence.
Q: So you do both PI plaintiff and defense work?
A: Yes, very much. I have tried a whole lot of cases for them (Farm Bureau). To tell you the truth, as a pure advocate, it’s good to have played on both sides of the fence because it does give you an inroad to what the other guy’s thinking and what the motivations are on both sides. A trial lawyer has kind of gotten a connotation as being plaintiff-oriented, but I see it more as an advocacy. I think it (switching sides) makes you a better lawyer.
Q: When you usually use people to review medical records, are you using them for PI or medical malpractice?
A: When I use someone like a nurse consultant, I’m doing a plaintiff’s negligence case and nine out of ten times it’s a medical malpractice case.
Q: Why no nurse consultants or merit reviewers for PI?
A: To tell you the truth, I don’t necessarily need them. I have done enough of those cases that I don’t need the help quite as much, though I don’t profess to know how to read medical records. I do use them in plaintiff PI cases. I have and still would depending on the nature of the case and the volume of the records. If I have an opinion that will not be addressed by the treating physicians, then I might have to have an outside source for that.
In a plaintiff’s case, if you can’t get what you want from your treating physicians, then you’ve kind of got a little bit of a problem. As far as medical records go, if it’s something in depth I don’t understand at all, then I am going to get somebody on board (like a nurse consultant) to collate records and help me understand it. If it’s your garden-variety soft tissue injury PI case, broken bones, etc., I have done enough of it to where I can handle it pretty well myself, along with the help of my treating physicians. In that case, I just call up the treating physician and work with him, as he’s the guy I’m going to be deposing anyway. Nine times out of ten the reason I don’t have a nurse consultant is because I’ve got my own expertise — I’m using a treating physician. If you can’t do that you’ve kind of got a problem with your case because it always looks bad if you have “Dr. Jones” testifying about the case when he did not even see the person.
In defense cases I am more likely to use a nurse consultant or an expert referral source because I may be wanting an IME (independent medical exam) or I may want some physician records deciphered and I can’t call him up because he’s the other party’s physician. So, in your garden-variety PI litigation I would probably use a nurse consultant more on a defense end. But, I have used them in every kind of case I’ve had.
I had to get a nurse consultant once in a criminal case because it was a question as to what kind of injury — there were all kinds of records — and I had to know what exactly had been done to this person.
I have used consultants in products liability cases, too, which is more PI stuff. One case was about a flammable nightgown where a lady burned up. I had nurses helping on that because she (the lady) had all kinds of rehab. Another case was over a cordless telephone. When they (the phones) first came out, due to the electronics of the things, when you would pick them up they would emit an electronic burst or sound. A phone burst a lady’s eardrum, and she had to go to all kinds of hearing specialists.
Q: How do you use a nurse consultant beyond merit reviews?
A: If I am using them for anything beyond collating and understanding records, then I am using them in the context generally of helping me screen a case, especially a medical case, and to help me line up experts.
You can’t really evaluate a medical negligence case the way you can any other case. First of all, like in any other case you look for damages, but a medical malpractice case is a whole other animal. Even if you have a good case, where negligence is there, if it’s not the kind of thing that will almost “shock the conscience” or hit the jury like a “shot to the gut,” you have to be careful with it because you will lose.
A lot times, what can look patently wonderful on paper, in terms of liability, you have to talk to a nurse because they live the life and take care of the patients. For example, “OK, it says this in the record, but what’s really the deal there?” That’s generally where the doctor is out having a smoke, etc., but you get the real life side of it. In many cases it looks like they screwed up, but this “happens all the time.” If you ask 10 doctors down the street, they also may say that it “happens all the time.” It may be negligence, but if the jury hears that it’s something that “happens all the time,” they will look for a reason to let a doctor off. On the other hand, if your grandma runs a red light they’ll give me whatever she’s got. A doctor — it’s a different thing. This is for two reasons. The ancient reason is that people tend to put doctors up on pedestals, and, more modernly, the powers that be have gotten the public convinced that medical negligence cases are what makes our insurance so high.
Q: But aren’t there frivolous suits, or not?
A: Well first of all, and I don’t mean to give you a darn lawyer’s answer, but it depends on how you define “frivolous.” In cases that are frivolous as a matter of law, there are devices in the rules of civil procedure to weed them out really quickly. If you get to trial, there’s some merit to your case. As far as those that actually go to trial, they’re not frivolous. Plus, half of the judges, if they’re going to sway one way or the other, will sway against a negligence case. I’m just saying this from living it and seeing it. Thank God, the one I deal with the most in this area is not like that. When you have a case, you almost have to learn a little bit about the philosophy of the judge you have in that case. It’s not political, but when you get into gray areas, you need to know how that judge feels about things.
Q: Do the good cases settle, and the iffy ones go to trial? This is sometimes a common sentiment.
A: It depends on what you mean by “good.” I do see, when I’m doing defense work, more than once, when I’ve seen a case come in and I get ready to answer it, I think, “I wouldn’t have even filed this.” But nine times out of ten I get those bounced out of court. I’m not saying there aren’t a lot of frivolous suits, but they don’t have a very long life. You get them bounced out on a summary judgment motion or something like that.
The McDonald’s coffee case is a good example — (people say) it’s a bad case that went to trial. Well, these people don’t understand how difficult it is to stand in front of 12 people and get them to give somebody $200,000 or $300,000 for anything. It’s hard to get them to give even $20,000 or $30,000. I’ve been there and done that, and they don’t just come in crying and sympathetic. The mood of the public these days, to tell you the truth, is probably on the other side of the fence no matter where you are. So, generally, if you see somebody get a big verdict there’s been something in that case that was very compelling, that hits them in the gut. That (McDonald’s case) was probably a bad case in most people’s minds because it’s such a fluky kind of a thing — why should anybody get paid for that? You have to take that kind of a case to court because of that very notion. The insurance carriers on the paying end of that are banking on it going down like that.
Q: What about cases that are good as a matter of law, but that are not winners?
A: I guess there are two aspects to evaluating any kind of a case. You can have a good case where liability is clear, but for some other aspect of the case, it could be a bad case. A typical example is where you have an automobile accident and it’s clearly the fault of the other driver, but even though your driver wasn’t doing anything technically wrong, when they got him to the hospital he had about .16 in him and his car was full of empty beer cans. So it turns on how your client appears, and turns on a whole lot of other things.
To me, a good case has a clearly definable value, in which you don’t have to go to court to get that. A good case you have to go to court with is one where you have a good, easy liability question — like where you can almost show the jury with pictures — and where you have a well-defined damages argument. To some extent broken bones are always better than soft tissue injuries as you can always show an X-ray of a broken bone. It’s hard to have an objective analysis of a soft tissue injury. From that standpoint, the kind of demonstrative evidence you have — the easier you can get the jury on your side — and let them have first empathy and then sympathy for your case, the better off you are.
Q: When you are hiring consultants, (nurse consultants, life care planners, etc.) do you pay a lot of attention to credentials and types of training?
A: Usually I call one of two nurses who I (already) know. But if they were not available, I would base about 90% of it on whether I was talking to a nurse who I was wanting to testify for me or whether I was talking to a nurse who as I was wanting to just work with or consult with me. I have had experts on everything from car design, wreck reconstruction, hydraulics — you think of it and I’ve had to deal with an expert.
The thing I go by more than anything else is, when I sit down with the individual — now obviously I want to make sure they have the basic credentials they need — if I am going to use them as a testifying expert, the credentials might be a little more important there than as a consultant. As a consultant, I want a buddy. I want somebody who is going to hold my hand and help.
If I am interviewing a nurse to testify in court for me, the main credential I want from this person is experience. A two year associate degree nurse with 20 years experience — that’s the one I want, not the bachelor’s nurse with all administrative experience. And I want somebody who is going to come across as a normal human being — who the jury is going to like.
Now, if I am looking at a nurse just to consult with me, I want to make sure she has enough training and preparation to know what she’s talking about, but after that, (credentials) are not as important as the rapport I have with her. Because I want her to not be afraid to tell me something — if I’m screwing up mainly — or if the case is going south one day — I want somebody who’s a buddy. I pick them a lot by gut.
You have to pick experts, whether using them in court or out of court, with a whole lot of the same criteria for picking a wife. Because just like in life, you’re going to live or die with them, baby. It may well be the most important decision you make in a case — in a medical case especially. If a guy gets to court and comes across as a creep, they (the jurors) don’t hear what he says.
Q: What about all the credentials and letters behind experts’ names? Do you know what all those acronyms mean and do you care?
A: I know what some of it is and some of it I don’t. They come up with new nomenclatures for different things every day. Some of it is because they come up with new disciplines. As far as credentialing, I want to have somebody who is licensed. I like to have an expert who can sit on the stand and say, “Yeah, I did this yesterday.” Probably what is less important to me is some sort of extended “academia” type of thing. I don’t have anything against that, but I am more interested in the basic credentialing, experience — and somebody who has been in the foxhole. I also have found that they stand up better under the pressure. So, I am more interested in somebody who the jury thinks knows what he or she doing.
And another thing I look for, whether plaintiff or defense — I like to work with somebody who I think the people on the jury would like to be treated by themselves. When I am talking with these people to help me with a case, I am thinking, “Would I want this woman giving me shots? Or would I want this man doing my vitals?”
Q: So what if the nurse or expert is not going to be on the stand, or will just be doing a merit review? Do you select them differently or worry about what the jury will think?
A: Well, not as much. I am just sort of using them as a computer machine — I give them the data and they spit out the results. But, even if it’s going to be a non-testifying expert, who may be around me in court at the counsel table, I look at how they come across personality-wise, appearance-wise and all that.
Q: Has an expert ever soured your case?
A: Yes, but in those cases I was working with other guys and did not hire them. An expert can really hurt you. You want somebody who’s humble