Episode #35 – Medical malpractice litigation

Dr. Bill Kanasky interviews St. Louis defense attorney Tad Eckenrode, Partner at Eckenrode-Maupin,  about medical malpractice litigation, preparing doctors, physicians and healthcare professionals for testimony, and juror perceptions of healthcare workers in the COVID-19 era.

Full Episode Transcript

[0:05] Bill All right, welcome to the Litigation Psychology Podcast, video podcast, with uh our guest Tad Eckenrode. Tad, how you doing up there in St. Louis?

[0:14] Tad All right. It’s a little rainy today, sitting here in my house as usual like everybody else is, but other than that, good.

[0:21] Bill Good, good. Um I, I hate to brag, I don’t know if you noticed, but the beautiful uh Orlando, Florida backdrop here. We got 90 and sunny, so uh sorry if you’re uh dealing with the uh the gloom up there in uh the Midwest.

[0:35] Tad It was better what I could be doing. I could be spending this week in trial, and that’s what I would have been doing if it weren’t for Covid.

[0:42] Bill Well, I rocked out the Chapel Hill uh Carolina blue for you. I, I did not wear any Cubby gear.

[0:50] Tad That’s good.

[0:51] Bill Uh so Tad, the purpose of the podcast today is we want to get your thoughts um on several things, but I know that you have spent your career doing a lot of medical malpractice work. You and I have been working for over 10 years on this. Um can you kind of describe to me—and I know the answer to this question, I just want our viewers and our listeners to hear it—just kind of about the general challenges of preparing health care professionals, particularly physicians, uh for testimony? They’re wired very differently than normal human beings. Um kind of what’s your philosophy when going into whether it be deposition or trial testimony with, with a physician or health care professional?

[1:36] Tad Well, and as you well know, everybody has their own distinct personality. Um a lot of physicians who’ve never been through the process before are obviously very nervous about it, uh and they need to have their hands held figuratively and literally. However, some of them who’ve been through it before unfortunately um, as everybody knows, physicians have egos and some of them can be rather cocky. So you get a wide variety of personalities involved.

And you know, probably more so than not, uh physicians who are obviously very intelligent, they’ve been through a lot of it, a lot of formal education—they’re smart people. They think that because of that, that they have the answers to all the questions. Unfortunately, they think that a simple explanation of what they did is going to resolve everything. So it takes a lot of early education of them about what the litigation process is, why the plaintiff’s attorney is not going away, why what they say can get them in trouble. It takes a long time to break a physician who has a lot of intelligence of the notion that he is going to command and control the deposition. By the same token, the ones who’ve never been through it before have that, that basic mentality that if I just blurt out everything, I can be done and I can get out of here quickly. So unfortunately, physicians, both the rookies and the, the ones who have experience, need a lot of preparation. A lot.

[3:05] Bill And you and I authored a paper recently uh talking about the whole concept of amygdala hijack, meaning that fight or flight response takes over. How often do you see that in physicians where they become threatened during testimony and they just can’t shut up because they figure, well, I better start defending myself because if I don’t, I’m going to lose the case?

[3:32] Tad I see it a lot. I would say actually over 90 percent of the time in depositions. Certainly it depends a little bit on how aggressive the plaintiff’s attorney is, but at the end of the day, most of them, because depositions aren’t what they do regularly, they get into this mindset that, you know, the quicker I explain this, the quicker I’m out of here. And that’s when the mouth starts to run. And it doesn’t even matter if the plaintiff’s attorney’s overly aggressive; they just think that they can leave sooner by getting everything out quicker. And so a simple, a simple yes-no question they, they will answer with a long explanation about the case thinking that’s going to wrap things up. It just doesn’t.

[4:08] Bill Can you describe to our audience the whole concept—and this is very controversial, you and I have talked about this a lot—the whole concept of pivoting a witness? Teaching a witness to pivot, meaning trying to out-duel plaintiff’s counsel. Can you talk about that concept and about how that can lead to disaster in your case?

[4:28] Tad Well, and of course as you and I have talked about, we’ve written about, we—I disagree with the idea of pivoting in almost every situation. There are very few witnesses, doctors in particular, who are savvy enough to actually be able to do that effectively in a deposition. So they’re in a setting that they’re not used to.

Now granted, and I tell all doctors this, part of what they do every day is they teach. They teach their, their students, they teach their patients. So they’re, they’re, they’re ingrained and and emboldened to explain things, and they do that all the time because they have to explain the risks and the complications. And the deposition setting is not where they should be doing that. What they should do is simply answer the question that’s asked of them.

And so the pivoting idea is—was obviously developed, we know by whom, um as, as a technique that’s supposed to help these defendants defend themselves and get themselves out of cases in which they’re alleged to have done something wrong by turning the, the tables on the plaintiff’s attorney. And it just doesn’t work. What they end up doing is they end up giving away way too much information. They give away defense strategies, quite frankly, that would never have been explored by a plaintiff’s attorney if they would just answer the question. So they either talk themselves into trouble and they give a long-winded answer for which the plaintiff’s attorney will cherry-pick a nice sound bite for trial, and that’s just a short portion of that that he’ll play at trial that makes the witness look bad. Or, if we’ve had a good developed defense theme, they’ve given it away.

[6:07] Bill What do you think about the concept—again this is related, the pivoting kind of where this came from—that some witnesses are being told, you know, 98 percent of these cases settle, you have to win the deposition. Is it possible to win a deposition as a defendant?

[6:25] Tad I don’t think you can. I mean, you, you can do a good job in a deposition, and that’s winning the deposition. And to me, you win a deposition when you leave there having given the plaintiff’s attorney nothing that he didn’t have beforehand. He’s already done his discovery, he’s already seen the records. As long as you don’t give him anything that is not already in the records, that’s a good deposition. You give him more than what he has and you give him sound bites, you give him explanations that he wouldn’t otherwise have come up with, even defense themes, that’s not winning the deposition. That’s making the case harder to defend.

And yes, a majority of these cases are going to settle, but you know as we talked about, we go into everyone with the mindset that we’re going to take this case to trial. One of the reasons why a lot of cases do settle is because these doctors screwed things up in depositions and now you’re stuck with a case you can’t defend anymore.

[7:14] Bill That’s a, that’s a very good point. So now we’re in the middle um, or hopefully on the back end of the COVID-19 pandemic, and you’ve seen a lot of positive PR related to healthcare professionals. Uh you and I haven’t talked about this yet, but I’d love to get your thoughts on this. How do you think the, the public relations message regarding health care professionals—it’s obviously very positive, uh particularly in the general public about the, the work that these front-line physicians and nurses and other health care professionals are, are, are doing right now—does that translate into impacting jury decision making? Um part of me says yes. However, I think in some venues, particularly yours uh in St. Louis or, or Memphis or, or Cook County or, you know, New Orleans, you know some of these venues are just judicial hellholes and it’s more of a “what have you done for me lately” kind of. Where do you see nationally um the impact of COVID-19, if any, on jury decision making towards health care professionals specifically?

[8:34] Tad Well, the first question is when are we even going to see a jury anytime soon? All of our cases have been continued, and the earliest case that I have that’s still even on the docket is in August. And I can’t believe that in August we’re going to be able to get a jury as it is, because you can’t get 12 people to agree to sit in a closed room with other people. That’s just not going to happen.

So let’s say that we start trying cases late in the fall again or after the, after January. There is going to be some positive PR spin for some doctors. Certainly if I’m defending an emergency room physician or something like that, there’s going to be good PR. If I’m defending a plastic surgeon or a podiatrist or something, I’m not sure that really is going to work.

And the other thing that we’ve also seen, obviously, is the entire COVID thing is a very polarizing issue in the country. There are some people who just don’t believe that there really is in fact a virus out there, and they think that a lot of people are taking advantage of this for political reasons. And so some people aren’t going to have much sympathy for physicians either way. And as you said, there are judicial hellholes where it is “what have you done for me lately.” Uh and you know, as you know in every case we have, when we go to pick a jury, one of the things we have to ask them about is good and bad experiences they’ve had with health care providers. While many people might say, “Geez, these health care providers have been on the front lines and helping us with COVID,” there’re going to be plenty of people who raise their hands saying, “Well, this doctor screwed up my father, this doctor killed my mother.” It’s not going to change a lot of those personal things that have happened to people.

[10:02] Bill I, I, I totally agree. Um let’s wrap up here um with, with a little reptile update. Now you and, you and I did DRI’s first medical malpractice uh CLE, and where were we? In, where were we? Vegas? San Francisco, that’s where it was. And uh we got very high ratings uh on that and that was some um time ago. Um reptile’s come a long way. I still think that in many ways um the defense bar is behind on preparing for the reptile attack. Uh reptile still does a lot of damage. Um what do you see in your jurisdiction with the reptile attack? Um I imagine it hasn’t slowed down any.

[10:58] Tad It hasn’t slowed down that much because there are new people coming on board, new plaintiffs’ attorneys coming on board who are buying into it. But I’ve actually seen some of the guys who were doing it five or ten years ago scaling back and not using it as much. Fortunately for me, I think what, what people have come to realize is the reptile approach doesn’t really work well in medical malpractice. It may work in trucking cases, it may work in product liability, but the whole idea of safety in a medical setting just doesn’t apply.

And that’s one of the things I try to tell doctors when preparing them for depositions if they get reptile questions, is safety is not something—it’s not a word used in the practice of medicine because everything a doctor does has risks and benefits. So while you can talk about, you know, a surgical procedure and doing it safely, the surgical procedure itself is introducing risks and potential complications. So it’s always a risk-benefit analysis, and once doctors understand that, they understand why they shouldn’t buy into the whole safety idea. And I think because of that, we’re not seeing it as much in medical malpractice cases now as we did five or ten years ago, because the, the plaintiffs’ bar has come to realize it’s kind of ineffective there. But obviously, as you well know, trucking cases, product liability, it’s obviously fodder for that.

[12:16] Bill Okay Tad, last question. I heard a lot of um concerns um particularly about millennial defense attorneys. Um what are you doing in particular and what have you observed um in your interactions with this younger generation of attorneys? What do they need to do to be fully prepared? Because again, I’m hearing a lot of concern that the 30 and 40-something defense attorney is really no match for their plaintiff 30, 40-something counterpart. What are your thoughts on that?

[12:51] Tad Well, and I think there’s some truth to that, as I’ve discussed before and you and I’ve talked about. You know, the younger plaintiff’s attorneys may get an opportunity to get into the courtroom sooner. They may get an opportunity to try a small case and then another case, so they’re going to get into the courtroom sooner. The defense attorneys unfortunately have to wait for an insurance company or a defense, defense uh defendant of some type or corporation to give them that opportunity. And they never want to give the young guy that opportunity because they’re afraid of losing the money. So they’ll say, “Yes, I want your lawyers to have trial experience, but I don’t want them to cut their teeth on my case.” So it’s difficult to get into the courtroom.

And so it’s a vicious circle that goes around and round. I want my attorneys to get a chance to try a case, but this client won’t let them try it, the next client won’t let them try it, and it goes around and around. So what they need to do is to take whatever opportunities they do get, whether it’s to argue a motion, whether it’s to attend a deposition, whether they’re a second chair case—use those as the educational opportunities that they are.

Uh you know, and as I said, I’ve, I’ve seen lawyers sitting in long depositions playing on their phone the whole time or doodling or reading the newspaper, and they’re not, not listening enough to really understand sometimes the strategic techniques that some people are using. There’s a point, if you’re in a deposition, the plaintiff’s attorney’s using a reptile question technique—the younger defense lawyers ought to have their ears open and be, and watch that and understand how uh witnesses should be responding to those and how they’ve been prepared. They can learn a lot from that. I’m not sure that they always do. What they do is they take some cursory notes, they write a simple report to their client afterwards, and they don’t really get anything out of it. So that’s where they’re losing their chance to get an education, and until they do that, they’re not going to get a chance to try a case. And so yes, they are falling behind their, their colleagues on the plaintiff’s side.

[14:44] Bill Great information, Tad. Thank you for being on the podcast, Litigation Psychology Podcast. We’ll have you on again soon, okay?

[14:50] Tad Sounds good. Thank you.