Episode #37 – Attorney Dale Paleschic on Healthcare Litigation

The Litigation Psychology Podcast welcomes Dale Paleschic, Managing Partner at Luks, Santaniello, Petrillo & Cohen in Tallahassee, FL. Dale and Dr. Bill Kanasky discuss the challenges of deposition and witness testimony of different types of healthcare professionals, including nursing staff and foreign-born physicians. Plus, they talk about why healthcare professionals, especially nurses, are so susceptible to plaintiff reptile attacks.

Full Episode Transcript

[0:05] Bill Welcome to the Litigation Psychology Podcast, brought to you by Courtroom Sciences. I’m Dr. Bill Kanasky, and this week, a very special guest, long-time friend and client, Mr. Dale Paleschic in Tallahassee, Florida. Dale, how’s it going up there in Tallahassee?

[0:22] Dale Oh, it goes pretty well. Luckily, we’re uh not in one of the main COVID hot spots, so.

[0:30] Bill That is good news. Now let me ask you this. Being in the city of Tallahassee and having all that Gator stuff behind you, like, how, how does the community let you get away with that?

[0:42] Dale Well, this is my own attempt at personal beautification in Tallahassee, Florida. Um and actually, I hear a lot more “Go Gators” here than I ever heard anywhere else, you know, since Gators are everywhere. You just, it tends to bring them out a little bit more.

[0:58] Bill As are, are Tar Heels. But I did get my PhD at the University of Florida, so technically we’re on the same page, right?

[1:06] Dale Uh yeah, I’ve actually sat next to you at a basketball game before, so…

[1:09] Bill Let’s not go there. Let’s not go there. Uh Dale, tell our audience how long you’ve been trying cases in the medical malpractice area.

[1:21] Dale Well, um really, I’m just about to enter my 30th year of practice. And most of that time has been spent—a lot of it more so in the early years—it was almost all medical malpractice. And then since that time, I’ve kind of branched out and defended nursing homes and ALFs, and then taken some of that experience and tried to interject it into some other major personal injury type defense situations.

[1:54] Bill Uh diversification is always a good thing. Um let me ask you a question since you just brought it up. How, how are nursing homes going to handle litigation going forward? Because I got to tell you, we’ve been doing some jury research and I can tell you what public opinion—i.e., juror opinion—about nursing homes was never positive, and now it’s plummeting. What do you think the industry is going to do as we get back to some form of normal and get back in the courtrooms? Because I see a lot of litigation going in that direction.

[2:28] Dale Yeah, I think the nursing homes and ALFs are going to have a lot of issues. Um you know, I think it’s really going to depend on them being able to show that they were following recommended guidelines um and that they didn’t do anything other than just that, that needlessly exposed risk. Because that’s where we, we tend to see the, the problems happen, is kind of when you get into that gray area and you don’t follow kind of the most stringent uh requirements. But they’re going to have issues with staffing and all kinds of stuff.

[3:04] Bill Yeah, I think the um particularly the reptile plaintiff attorneys are going to have a field day with that. Um un-unfortunately. It is, it is what it is. Now, you and I have been working together for years, and what we want to do on this particular podcast is kind of dive into um healthcare litigation in general and about some of the different types of challenges that you face. And one thing you and I have done repeatedly over the years has, have prepared difficult witnesses for both deposition and trial. And there’s different types of witnesses in healthcare as you know. And um I think, you know, the first kind of category here of witnesses I want to discuss with you are physicians. Um you know, we’ve worked with several different physicians before. Do you find certain physicians from certain fields of medicine to be more challenging than others because of their background and training?

[4:01] Dale Well, I think anytime you start delving and getting into specialties where folks like surgeons uh and folks of that nature who are used to giving commands and and running the show, um they still want to run the show. Um and it’s very hard sometimes. Some of them have great personalities that, you know, are naturally warm and inviting to folks and can go into that mode, but others not so much. And you’ve got to kind of bring them down from that hierarchy.

[4:34] Bill Yeah, because there is a, there is an ego issue with a lot of those physicians because they are the boss. And then uh they’re not accustomed to, to taking orders. Can you talk about some of the challenges you’ve had with those types of witnesses? And you and I have both been down this road where they think, particularly at deposition, “I’m just gonna medically explain my way out of this and the plaintiff attorney is going to drop the case.” How do you, how do you deal with those situations? Because I’ve never seen that happen before.

[5:03] Dale Well, I think the best way to do that is simply by preparation. And you’ve got to get them into a scenario where you can show them that simply explaining the medicine sometimes is not enough. That, you know, you want to prepare them very well for any type of cross-examination they’re going to be subjected to, and really open up their eyes to them so that they can see that, you know, listen, there was an alternative option here uh that more than likely you considered, probably dismissed, and but you’ve got to be able to explain why you dismissed it. And you can’t just talk about it just simply because “I know this is it.” Uh you’ve got to actually explain it. Now, even though it may be something they learned way back in med school way back when, they’ve still got to explain it to a jury.

[6:04] Bill Yeah. And then there’s different—there’s other types of physicians I found that, you know, working with um OBs, particularly on these birthing injury cases. Can you talk about your experience and how, and how you maybe handle that type of witnesses? Because uh well, many—there’s many more females in that particular uh uh specialty of medicine, and there’s a lot of emotion when you have an injured baby or mom or a death case, unfortunately. How do you deal with kind of the emotional side of physicians when something really, something’s really sad has happened, and not letting the witness’s emotion take over in the deposition or a trial?

[6:45] Dale Well, the best thing I found, Bill, is is to have multiple prep sessions with them um that are kind of extended out over a period of time so that they get used to talking about it without that emotion coming into play. You, you don’t want to prep them the day before for their depositions the next day. Um you know, that they’ve got to be able to talk about the uh the situation and what occurred in a very cool and calm and collected fashion, because that’s what a jury wants to see is someone who’s cool and calm under pressure. So I find that that’s, that’s one good way of going about it and getting them back into the records and letting them see what’s charted and things of that nature.

[7:32] Bill Yeah, I find that um the emotional responses can be very intense and they’re, they’re completely human and normal. And if you have those and maybe it requires some extra preparation uh… there’s a lot of built-up emotion, and if that comes out in the deposition, well hey, it’s going to look bad, particularly on videotape, but the odds—the statistical odds—of the physicians saying something uh harmful are gonna be pretty high. A final kind of category of physicians, um foreign-born physicians. Somewhere between 35 and 45 percent of physicians in this country were not born here, and so you have cultural barriers, you have sometimes a language barrier. And you and I have worked with a few of these folks. To me, sometimes that even doubles the time of the preparation. You agree?

[8:33] Dale Yeah, I think there’s a challenge there because you want to make sure that wherever your venue, that your physician is able to communicate to the panel. Um and, and it takes practice. You know, they’re, they’re not used to either (A) looking into a camera all the time and addressing the camera like this, or (B) doing the ping pong, as I like to call it, back and forth between the questioner and the jury panel. You know, we all know folks will position themselves to try and make the doctor look away from the jury and things of that sort as much as they can. So you know, some of the—those uh psychological ploys have to be discussed with them, and again, it really does take a lot of prep. You know, maybe even more intensive uh just from the standpoint of having them go through a direct exam and then a cross exam, and watching themselves on video and getting them to understand, “Hey, this is an—this is a good answer, but the way that you presented that answer has got to change. We’ve got to alter it just a little bit in terms of how you’re coming across to the jury.”

[9:45] Bill Yeah, I see a lot of uh fear in those witnesses because the the legal system from their home country is nothing like ours, and uh is usually something more negative back at home. And then they get involved in litigation for the first time, and there’s a lot of fear-based responses that they’re, that they’re worried about. And in particular, I was working with the witness uh—I mean, there’s a lot of physicians from Iraq, Iran, Syria—and then, you know, you look on the news and you see, you know, back when ISIS was, you know, attacking and and all these kind of anti-you know-Muslim messages on, on the news. I think that actually uh created a lot of anxiety for those particular physicians, and to try to get them over that psychologically, that there is a way that they can communicate both during the deposition and at trial to the jury and that jurors will believe them. But if they take on that fear and they feel like they’re going to have to fight their way out of this, they’re, they’re probably going to dig a deeper hole for themselves, right?

[10:51] Dale Yeah, I mean, you want them to feel comfortable um and you’ve got to let them see themselves sometimes being uncomfortable, and pointing out those areas where they are uncomfortable. You know, usually it’s not the medicine. It’s what’s surrounding the medicine and all of that. It’s the interactions with the patients, it’s, you know, uh “Why didn’t you chart this, you know, if this is what was really going on?” So you know, and it’s those questions, when they’re not staring at the black and white sometimes, that are the very hardest and most challenging for them.

[11:32] Bill I completely agree. Speaking of challenging, let’s talk about nursing staff. Preparing nursing staff for testimony. And you wonder why I have no hair is because I’ve pulled it all out.

[11:46] Dale You and I were talking about that earlier. I’m not far behind you.

[11:51] Bill Yeah, um let’s talk about nursing staff. Um I’ve, I have found these—I found them to be some of the more difficult nurses um to prepare uh and train. Uh oftentimes a lot of emotion involved. Um these are the folks that have the most contact and face-to-face communication with the patient. Can you talk about your experiences and how you, you approach witness prep maybe a little differently with someone from the nursing staff as opposed to the attending physician or the consulting specialty physician?

[12:30] Dale Yeah, sure. I, I think it’s really important at the front end uh because they may not be as familiar with the litigation process as some of the physicians are. Um in terms of what they’ve got to do, you know, they’re not giving expert depositions or testimony for court cases and things of that nature, whereas, you know, sometimes the physicians are. So, you know, you’ve got to communicate with them and you’ve got to figure out exactly what it is that they did and why they did it, and then talk to them. And it’s really important to be as familiar with the medicine as they are so that you can have kind of a, a conversation with them that lets them—(A) puts them at ease knowing that they’re talking to someone who’s friendly toward them and isn’t trying to just tell them, you know… I always like to, to go in—one of the things I say is, you know, “I am not here to tell you what to say. Um that’s not my role, but I can help you say it better.” Um and they, you know, with nurses as you noted, they are sometimes very intimately involved with the patients. Um they’ve either cared for them for a period of time or, in a tragic case—I mean, I once spent over 40 hours of prep time with a nurse who simply couldn’t even utter the patient’s name without breaking into tears because she was so emotionally involved in the outcome. But by the time our preparation was over and we had talked her through everything and made her realize that she did everything right, it was just a bad outcome and that sometimes happens and it’s really crappy when it does—but that’s a part of the game of medicine is that bad outcomes happen. And by the time we got done with that week of prep over probably four weeks of time um she gave one of the best depositions that I’ve ever seen a nurse give. Um didn’t concede anything to plaintiff’s council.

[14:56] Bill And, and that’s terrific. And what we’re talking about really—these are not really legal issues we’re talking about. This is why I get called to work with so many nurses. These are psychological principles we’re talking about, is to help the nurse understand that just because there was a bad outcome does not mean anyone’s to blame. It doesn’t mean anybody’s at fault. I find that nurses um a lot of them coming in, they feel guilty and they almost want to accept some responsibility legally because they feel bad for, say, the family members if, if there was a—like for example, a death case. And they feel so emotional and bad that they, they kind of want to fall on the sword when, you know, we’re telling them, well, (A), that’s not necessary, but (B) if you do, it’s going to create um a lot more problems. And we have different levels of nurses. Uh what I found challenging as of late, there’s been this huge boom in um the nurse practitioners have really—and this is the healthcare model of the last 20 years—has really changed. And you’re seeing a lot of—and I can’t even tell you the last time I’ve seen my personal physician because I end up seeing a nurse practitioner first. And you know how the model works. How do you—what I find challenging with preparing nurse practitioners is there’s that line between nursing and medicine. And because they are so highly trained, I think sometimes there’s—I think they get baited into giving medical physician opinions versus staying in their own lane. How do you deal with that particular problem with a nurse that is so highly qualified but is not a physician on paper?

[16:33] Dale Well, and I think you, you just kind of pointed it out. You’ve got to explain to them that, you know, what their role is and that they’re not really, quote-unquote, practicing medicine, they’re practicing nursing. And they can provide nursing care, and there’s certain guidelines that they have to practice under, and you need to get them to understand that they can’t exceed those. Because the moment they exceed that, they’ve usurped the authority from the physician. They’ve gotten not only themselves in hot water, most likely with a plaintiff’s council, but also a physician in hot water who’s supposed to be supervising them. You know, that supervision level is sometimes very wanting, um you know, other than a monthly or weekly chart sign-off, and uh you know, that, that creates a lot of issues for those practitioners as well.

[17:32] Bill Yeah, and then you start moving into the mid-level and, and more lower-level nurses. Because there’s so many different areas of training in nursing, what I find is that the kind of mid and lower-level nurses—probably the ones with the most patient care contact—they are highly susceptible to these reptile questions involving, “Wouldn’t you agree um a good nurse always push, puts patient safety first?” And “Wouldn’t you agree that uh a good nurse would never expose their patient to an unnecessary or, or needless risk or danger?” And in my experience, they’re just like, “Yes, yes, yes.” And they tend to fall into these reptile traps very, very quickly. And then when I train them to not respond with “yes,” but respond with more effective answers like, “Well, you know, safety’s one of the many things that we’re considering in the nursing,” or, you know, “Or can you be more specific? What, what specific unnecessary risk are you talking about?” And really learning how to deal with the reptile attack. I find that these witnesses are the most challenging because, I mean, in your experience, I have these nurses coming in telling me, “I’ve been told patient safety is my top priority for the last 25 years, and now you’re telling me it’s not.” But the fact of the matter is, though, patient safety is not the top priority and it never was. This is a marketing PR issue. Every hospital has their billboards. The key is the standard of care is the nurse has to do what’s reasonable and appropriate for the patient in that particular clinical circumstance. The word safety does not come up in the legal definition, the standard of care. Have you had challenges getting that through nurses’ heads that we have to think about this whole safety concept very differently?

[19:26] Dale Well, I think you, you’re right in the sense that risk management departments, you know, at any facility, are drumming safety. And, and it—and it always—it, it’s always the reasonableness of that question um that gets them. You know, “Wouldn’t you agree that as a nurse your top priority is patient safety?” You know, uh you gotta go to that. Yeah, I mean, you know, and, and how do you answer, you know, “no” to that until you explain to them where that question is going to go and why it’s being asked in that particular fashion? So you’ve got to kind of run them down the gauntlet and show them exactly what they’re going to get trapped into for them to kind of have the light bulb moment and go, “Okay then, really what I need to say is I can acknowledge this, but there’s a whole host of other considerations that have to be taken into account for.”

[20:35] Bill And to be able to stick with that answer. And yeah, it’s a very difficult uh very difficult uh uh population of witnesses to, to deal with uh in that regard. Now looking at both physicians and nurses, have you had—I’m sure you’ve had a nightmare—where you’re in the scenario where a former employee is going to be depo—you know exactly where I’m going with this. Someone that’s been terminated, right, from their job, and now a couple years has gone by and now they’re going to come back. How do you, how do you—because I’ve seen some pretty angry people that left under very negative terms that can be just really a hand grenade, right, that you’re holding that can explode in your face. How do you prevent that type of former employee from being resentful and trying to get back at their former employer during testimony?

[21:31] Dale Well, and I’ve had it happen once or twice. A nurse has come in and completely blown a case apart um for, for not only the hospital but the physicians that were involved and everybody else. And um you know, what you, you hope you impress upon them is, “Listen, I know you might have left under less than ideal circumstances, but you know what’s really being challenged here is whether or not you were a good practitioner. Were you a good nurse? Did you do your job?” Yeah, you’re not going to hurt anybody other than yourself and come out with egg on your face by simply trying to get back for some other incident that you’re up to that with the facility about. So that’s kind of, you know, one of the ways that I’ve tried to do it. You know, you kind of have to take each case as a, you know, stand on its own merit and see where they’re at. Uh you know, why were they discharged? You know, and those types of things.

[22:40] Bill Yeah, tricky situations with those types of witnesses. Okay Dale, final, final, final issue. Um one of the big problems in healthcare litigation is the whole concept of finger-pointing between professionals. And it can go nurse to nurse, it can go nurse to doctor, it can go doctor to nurse. What have your experiences been with those types of situations and how do you prevent it? I find that when we’re meeting with the witness to ensure them confidentiality and privilege and try to earn their trust, because if you don’t know how they really feel, that can, that can—there could be some serious damage to that deposition. I know you, you don’t like surprises at deposition, but how do you figure out if there’s going to be some finger-pointing involved? Because I imagine if you figure that out early, you can develop the plan to deal with it. But if you’re in the middle of the deposition and Nurse Jones is blaming Nurse Smith, you’re kind of in trouble, right?

[23:41] Dale Yeah. And so what I always like to do with those cases is come into them and sit down with the record and just say, you know, “Okay, I know what the record says in black and white. What doesn’t it tell me? What—is there anything else that went on that isn’t recorded here that I need to know about? Is there any reason that this other nurse or this other physician has any reason to point a finger at you?” You know, I don’t care if it’s something that happened that morning of, you know, you stole his parking spot and walked uh you know, an extra four rows that morning. I want to know about it. Because if there was—if there’s anything that can spill over here, there’s no quicker way to sink the ship than to start having some finger-pointing. That’s, you know, plaintiff’s council’s dream.

[24:38] Bill It really, really is. Well Dale, last question. Are we gonna—are we gonna get some college football in this season or what? I mean because I’m going bananas over here.

[24:46] Dale Well, I am hopeful that we will have uh 25% filled stadiums. Um you know, um it, it’s—I but I’m, I’m just gonna leave it to the experts.

[25:02] Bill All right, Dale. Thank you so much for uh participating in the podcast, and we hope you have—have you on the future, okay?

[25:10] Dale Uh yeah, I have just one more thing to say.

[25:12] Bill Sure.

[25:12] Dale Go Gators!

[25:16] Bill Tar Heels. All right, talk to you soon.