Episode #43 – Healthcare Litigation with Attorney John E. Hall, Jr.

In this episode of The Litigation Psychology Podcast, Dr. Bill Kanasky is joined by Atlanta area trial attorney John E. Hall, Jr., Partner, Hall Booth Smith to discuss healthcare litigation. Bill and John talk about birth injury cases and the importance of understanding the basics of the medical aspects of the case, as well as the emotions of the family and the nurses and healthcare staff in these cases. They also discuss their perspective on giving healthcare workers the freedom to defend themselves based on the legal standard, not the medical standard, and what that means, especially in light of the emotional issues in these cases. In addition, they highlight the importance of a joint defense meeting in cases involving multiple defendants and in finding common ground; how the plaintiff’s bar is driving nuclear (or aberration) verdicts; what the defense bar should be doing to train young lawyers; the power of anchoring damages and the strategy to attack damages; and the importance of early case assessment and providing a damages offer early, and more.

Full Episode Transcript

[00:05] Bill
Welcome to another edition of the Litigation Psychology Podcast brought to you by Courtroom Sciences, Inc. I am Dr. Bill Kanasky, litigation consultant, and very, very pleased and honored actually to have Mr. John Hall with me today, trial attorney from the Atlanta area. John, how are you today and how are things in the Peach State?

[00:28] John
Doing good, Bill, and hey the honor’s mine. Thanks for letting me do this. We’re actually doing okay. We’re kind of not going too crazy in the COVID numbers right now, so fingers crossed and hoping for a vaccine.

[00:40] Bill
Yeah, I’m hoping that life can get back to normal soon. Well again, thank you for being so much on the podcast. What we’ve been doing as of late, well we covered a lot of nuclear verdict topics, we covered a lot of trucking topics as we opened up this podcast in spring, and now we really wanted to transition to more of some medical topics. I know you have some special expertise with that, but before I get there, I really want to know, at what point in your life did you figure out, okay I’m going to be a trial attorney? Because I remember back in my day, I mean first it was attorney, then it was physician, then it was physical therapist, then it was an athletic trainer, then it was a psychologist, and I ended up a jury consultant. So better late than never. How did you come to this important life decision?

[01:27] John
Hey, I grew up in very poor rural South Georgia. We had outdoor plumbing until I was in the first grade, and so I knew going through that I wanted to do something in a profession. I had this dream about building bridges, and then I took ninth grade algebra, and I found that that was not going to be my avenue to be a civil engineer. Went to history, really fell in love with American history and state history, and realized that that was something I could get dressed up every day and go wear a suit, and I didn’t have to crop tobacco. So that’s how I started to come over here.

[02:02] Bill
That certainly makes sense to me. Can you take maybe 30 seconds, tell us about your law firm, Hall Booth Smith, and the types of cases that your firm as a whole handles?

[02:15] John
Yeah, you know we are in nine states right now, but we also have a national practice, especially in catastrophic cases and medical cases. The firm’s full service, but probably 40 percent of what we do is defend hospitals, doctors, and others in litigation when they’re sued in terms of the medical profession. We also do some regulatory general counsel work for those groups, and then we’ve got, as I said, the rest of my partners do stuff with transportation, construction, just about any area you can think of except securities or divorce, which is probably two areas to stay away from.

[02:53] Bill
Well that’s great. What I want to really talk to you about today was the special challenges behind birth injury cases. Now when I first got into this industry, and I still don’t know who came up with the term bad baby, I think that’s probably a bad way to describe these cases, but when I got into this industry that’s what they were called. They were called bad baby cases. What I was told by my mentors is you better watch out for these because there’s a lot of jury sympathy and a lot of really tough emotional issues to deal with, not just with the plaintiff and the circumstances, but the emotions of what the health care providers are. I know you have some special expertise in this. Can you talk about just kind of your general philosophy of when one of these cases comes in, how you maybe handle the workup of that case maybe a little bit differently than a different type of med mal case?

[03:47] John
Yeah, you know on these cases obviously with a birth injury case there’s a variety of different medical possibilities, both in terms of the standard of care and causation and damages. I think you’ve got to initially dig in and understand as a lawyer, be aware of any lawyer that tells you they know the medicine. I think you got to get in and become familiar with the medicine and rely on your experts and your folks to lead you, but you need to know enough to understand where they’re leading you to. So you dig in with that. Then you got to remember that this is not only traumatic for the family, this is traumatic for the nurses, the doctors, and everybody else. You got to get in and let them have a personal relationship so they know somebody’s defending them. Remember most of these people, they’ve been brought up through this quality assurance program, so the first thing anytime anything happens that’s not just absolutely perfect, their question is what did we do wrong? We want them to do that through quality assurance and risk management and go back and second guess themselves, but I think early on you’ve got to convince them that that’s not the standard for a legal malpractice suit. The standard is what is reasonable, and you got to put yourself in the position of where you were at the time under those circumstances to get reasonable. I think that’s the biggest initial hurdle you’ve got to get over, is give people the freedom to defend themselves.

[05:08] Bill
Yeah, I agree. Most health care professionals in general struggle to understand that that’s actually the burden. It’s not, you know, because they always come out with, well I need to do my best, I need to do everything I can, all this very idealistic, I want to do, I want to try my hardest. It’s like, well that’s not the legal standard, and you’re right, when something goes wrong, particularly in medicine, they take it very personally. What I have learned, when hospital systems call me and say hey we have some nurses we need prepared for deposition, there’s a lot of high emotion involved, how much time is this going to take, my answer is the same every time. It’s going to take at least two sessions, because on session number one that’s our crying session. I call that the crying concession, because we got to get all emotion out, and then by session two they’ve processed things. Again, I’m a clinical psychologist, so part of my job is very therapeutic with these nurses. What I have found, and I’d love to hear your experience with this, when you have an emotional nurse until those emotions get processed, they can’t think straight, they can’t review documents, they certainly can’t go over case strategy. What are some of the things that you do early on in these cases to specifically address the emotional needs of your witness?

[06:33] John
Well I admire you. I’m a dime store psychologist, so bear with me. Let me give you an example of this. I got involved in a case that the nurse had already admitted violations of the standard of care that were not true. A plaintiff’s lawyer had led them down a pathway, scared, in a six or seven hour deposition where they really weren’t very strongly supported, and she’d admitted it. I went in my first meeting with her, I got involved before the trial of the case. My first meeting with her, I’m starting out with the first issue of okay listen, first let’s just tell me this, the standard of care is what a reasonable nurse would do under the same or similar circumstances. Repeat that back to me. It took us 45 minutes before she could say that, because she was so emotionally drawn into the case. That first meeting, if there’s tears, I’m happy, because that means they’re trusting me enough to show me what they’re really feeling inside. We try to personalize it, form a relationship in that meeting, and get that information out. When you do that, they then become empowered to defend themselves. The end of that story, by the way, and obviously we won the trial or I wouldn’t have told you the story, but the end of the story is this nurse gets up, she does a good job, she’s cross examined on didn’t you say this, yes but that was in the deposition, you were pushing me. When I stop and I look at the record, this is the right answer. Nervous as she could be, but she did that, and I knew we had the case won. When she got up to step off the stand, she tripped and about nine of the jurors jumped up to catch her. So I thought okay, we’re all right.

[08:11] Bill
That’s a great story, John. Another thing I see in these birth injury cases, depending on how the insurance, depending on how the hospital system is set up, and whether the doctor, the physician, the OB, the admitting physician, whether they’re underneath that umbrella of agency or whether they have separate insurance, I often see a little finger pointing early on in these cases. How do you deal when you don’t have everybody under the same insurance provider and now you’re dealing with co-defense counsel, and maybe multiple co-defense counsel? How do you guys avoid the whole thing, because I think that’s the lottery ticket for the plaintiff’s bar. If I’m a plaintiff attorney and I get providers blaming each other, I want to take this case to trial. How do you deal with some of those issues early on?

[09:03] John
Let me plug a group that we’ve got, Bill, and I want to get you involved in, called American Legal Connections. We’re trying to bring together insurers, reinsurers, hospital groups, physician groups on the front end to think about just this question, and how do we collaborate. The plaintiff’s bar is collaborating, spending a bunch of money, and collaborating, and we’re not. We’re still islands among ourselves. So ALC is working to put that together. How do you deal with it? My view is we ought to, and I try to make clear to everybody, have early on a joint defense meeting. If you can get the insurers and the stakeholders, if it’s a hospital group, get them together. You find a lot of lawyers are reluctant to put their clients in the room with other lawyers. We got to get over that. These cases are bigger than any one thing or one issue. These are bet the premium cases, sometimes bet the line of business. We get together early and try to talk about how we can do that. There is inevitably the issue that somebody may have an issue against somebody else, and we try to convince people let’s let the plaintiffs prove that issue against you. I won’t waste my time. Let’s find the common ground, defending damages, shortening the life expectancy, ridiculing the fictitious life care plan that they’ve got. Let’s find the common ground and let’s all do that. Then let’s be prepared that if one of us settles out, and it’s an apportionment state, then we may get an expert or use the plaintiff’s expert that has criticized them. If you don’t have one already designated, you can use the plaintiff’s, use them to get that apportionment on the settled defendant. Until then, my view is the minute we get in there and start doing that, all we’re doing is making the pathway for the plaintiff. I tell you the joke I’ve heard is, if there’s a bad event, what’s the first thing the doctor says, what did the nurse do wrong? You get a bad event, what’s the first thing the nurse says, what did I do wrong? So you got to really work the personality. I represent both physicians and nurses. On the nurses I’m trying to get them to defend themselves, and the physician I’m trying to get them a lot of times to be team players, and that’s what we have to do with the lawyers too.

[11:17] Bill
I completely agree. Unfortunately, I think the state of affairs in 2020, like it’s not a crazy enough year as it is, but bottom line, 2020 was when this concept, which by the way is not new, we used to call the runaway jury, now they’re calling it the nuclear verdict concept. Nuclear verdicts have been happening for 30 years, John, you know it, I know it. I think they’re getting publicized a little bit differently. But with the one thing that you have brought up, which I find absolutely astounding that the defense bar hasn’t caught up yet, is the amount of collaboration within the plaintiff’s bar. The amount of money they’re spending on training, particularly young attorneys. I am terrified that within the next five to seven years, as maybe attorneys in their prime start to phase out, look at retirement, the next group of younger attorneys may not be quite as trained or talented as their adversaries of the same age group in the plaintiff’s bar. What are you doing at your law firm to make sure that your 30-something and 40-something attorneys have the type of training necessary to go up against these very well-trained, oftentimes reptile-trained, plaintiff attorneys, particularly med mal?

[12:38] John
Since it’s a political season, let me answer a couple of comments you made first before I answer the question. First of all, bad baby, we talked about, we don’t like that term, we don’t use it. It was early in the 80s. I don’t use the term nuclear verdict. Nuclear verdict indicates that there is a plaintiff’s attorney who had a weapon that he fired and made his attack and got a huge result. I call them aberration verdicts. You’re right, the statistics show that they’re really not that much more frequent than they were previously. The dollar amount, the severity because of the change in society has gone up, and the publicity has gone up, so that we all fear it, and it’s making the non-dangerous cases settle for a higher amount or not tried, or come through that process. That’s why that whole topic just kills me. We’re letting the tail wag the dog in defending these cases, and we got to stop. That’s the train. We’ve got an HBS University. I believe, and you may have seen some of this stuff I’ve posted, I believe that if companies and hospitals don’t get into paying and allowing young lawyers to go do things and try cases, especially defensible cases, in five to ten years you will have no more trial lawyers. It will be a workers comp administrative hearing system and we’ll just all pay out money every time as a no fault system. We’ve got to train young lawyers. Believe me, I’ve had companies sit there and tell me, oh we train young lawyers, we allow you to do that, but sure enough here comes the case, well we want the gray haired guy to handle it, and no you can’t use two people to go cover this expert. My God, imagine the cost of that in this multi-million dollar case, we might have another thousand dollars of attorney’s fees. We’ve got to get the industry to understand that if we don’t start training the next generation, we’re in serious trouble. We do it internally and suggest to do it outside. ALC is working on training programs for young lawyers. The good side of that is, you mentioned these skilled plaintiffs lawyers, it’s not true. The plaintiffs lawyers try less cases than ever. Ninety-seven percent of cases settle. The plaintiffs lawyers try cases less than us. That’s why they went to the reptile theory, because it gives them a way to work through a case and overcome their fear and anxiety, because they don’t frequently try cases. When they get in there and try, these great plaintiffs lawyers, usually if somebody’s got a huge back, the defense lawyer was probably better, but the plaintiffs had great facts. We can’t change the facts. They get a fact where anybody could get a verdict, and then all of a sudden they’re an expert. They’ve got a birthtrauma.com website and they’re brilliant, but they don’t try cases, and neither do their young lawyers. The good news is neither are the plaintiffs lawyers preparing to try cases.

[15:37] Bill
Yeah, and I think you’re definitely right going forward. By the way, I would love to be an adjunct or assistant professor in any of your training or universities. Happy to help. Let’s talk a little bit about trial. It’s astounding how people are trying to come up with all these reasons. I’ve studied this scientifically for 15 years. Somebody called me the other day and said wow did you hear about this verdict, it was 130 million dollars, I just can’t fathom how in the world did the jury make that decision. I looked at him very plainly and said, the plaintiff attorney actually asked for 130 million. If he would have asked for 150, they would have gotten 150. There’s this concept of anchoring damages, very powerful from a psychological perspective. Meaning, if I ask for 150 million and they give me half, that’s 75 million dollars, John. Can you talk about your strategies on how to attack damages? Because what I’m seeing now, and I don’t think it’s reptile necessarily, I think the reptile folks are doing it, is very aggressive plaintiff attorneys at trial, not only asking for crazy numbers, bringing it up in voir dire and jury selection, bringing it in the first paragraph of their opening, and finishing strong with it. What do you do as defense counsel to torpedo their damages amounts? Because if you just ignore it, you’re going to have a nuclear verdict at the end, I’ll tell you that.

[17:24] John Right, maybe an aberration verdict, though in that case the defense isn’t prepared, it probably is a nuclear verdict instead of an aberration. Um, hey listen, it—that’s a—that’s a four-hour conversation. Let me give you a couple of uh, tidbits on it. Uh, first of all, I think anchoring needs to be looked at in two ways. I’m a huge fan of anchoring, love to do a program with you on anchoring. I think we ought to quit asking plaintiff’s lawyers for demands. We are to go early on within the first 120 and 190 days and realistically evaluate the case, including our defense costs. And by the way, quit making your defense lawyers feel bad about billing and protecting yourself, as long as they’re doing it reasonably. And if they’re not doing it reasonably, you don’t trust them, you’ll not hire them. But the joke’s on the defense counsel, has the same psychological effect that we we do on on hospital providers. You know, support these people that are doing this for you and probably can make a whole lot more money on the other side on the front end.

But stop asking these plaintiffs lawyers for uh demands. Go make a reasonable offer in the first 120 or 90 days, which means going against common old time 80s and 90s successful trial strategy of “we defend standard of care and we might defend causation, but we don’t discuss damages.” The aberration verdict comes when a plaintiff’s lawyer asked for 140 million. We did a study, a group of us, and we looked at 70 aberration verdicts; of those that, almost 80% of those defense thought they were going to win, they lost it, but nobody had put up a damage defense. And therefore the jury took 150 million, cut it to 75, and said, “Well, you want to be happy? We cut it in half.” And he said, “No, it wasn’t worth this.” Well, you didn’t give us that number.

How do we think jurors who these days—oh, I I’m looking for my my phone—you and I have talked about, oh, these days our jurors have an answer to every question they want by doing this. And if I don’t give them an answer and assume the burden of proof on standard of care, on causation, and on damages, and give the jury that answer? They’re gonna be what they think which, “Hey, I’ll cut it in half, that must be reasonable. If it was less, this lawyer would have put up evidence.” Because they see us as having the burden of proof of showing them an answer that they can rely on since they can’t go on their Google uh… so I think we’ve got to change our entire mindset. And and thank God, let me throw out a couple of names: Stephen Rocco at AIG, who’s now retired, really started this damage program for the industry probably, you know, um, I guess it’s now been almost 19 years ago. We got to defend damages, defend damages, defend damages. And they’ve started working it, but I I’d say 80% of the defense lawyers in the country still don’t buy in. And we’ve got to buy in, evaluate early, and then then go through and actually carry through a trial and defend the damages on the case.

[20:14] Bill Yeah, you’re absolutely right.

[20:15] John Yeah, that would take a whole lot more time, sorry for the short version.

[20:19] Bill No, no, that’s that’s it, but I struggle with that. In fact, the last case I consulted on, a a 55 million dollar demand and a plaintiff attorney—I was consulting on the plaintiff attorney—called us and said, “I am asking the jury…” He told us, he bragged about it, like, “This is what I’m asking for, and I’m going to do it in jury selection, then I’m going to do an opening.” And I looked at our attorney, I said, “The first sentence out of your mouth in opening is going to be: ’55 million dollars is absolutely absurd, ladies and gentlemen.'”

Yes, that’s the first sentence. Yes. The 25-year veteran defense counsel looked at me and said, “You’re insane, Kanasky.” And I went, “No, I’m not. No, I’m not. I’ve been down this road more than you have because this is what I do every week. Uh, I consult on hundreds of cases a year.” I go, “The first thing out of your mouth…” And it took me two days to figure—to try to get through his head—”You better attack that because if you leave it alone, you’re going to be on the Chicago Sun-Times, you know, or the Chicago Tribune front page.” And you know what he did? He came out and the first sentence was, “Ladies and gentlemen, 55 million dollars is not only excessive, it’s it’s absurd, and you all know what’s going on here. Let’s really focus on what’s going on.” And actually really did a nice job of attacking the damages and, you know what, it turned out really really well.

Let’s finish up, John. I want like your top couple of uh, if you again I’d like to and I’m hoping I’ve got—I get a lot of phone calls from actually young attorneys, say, “Hey, I watch your podcast or I watch your webinar, boy, I love what you have to say and I’m a 30-something or I’m a 40-something defense attorney and I want to be the next superstar. And so I, but I need help, I need help.” And I think a lot of times the best way to help somebody is not to tell them what to do, John, is to tell them what not to do. So if you had that, if you had to give a couple pieces of advice, particularly to to defense counsel uh that are younger, they want to be superstars, they’re focusing their career in the healthcare litigation, medical malpractice—what’s a couple of maybe pitfalls that you’ve seen over the years that you’d want them to avoid?

[22:32] John You know, these kids come out of college and they’re the all-stars. They come into a law firm and they get beat down by the pressures of an older tiered leadership and they become subservient. Uh, my view is stand up. Don’t be a, you know, don’t don’t be ridiculous, don’t look for confrontation, don’t be a braggart, but go out and let people know, “I’m ready, I can do this, and I can do…” Always be confident and run, and then go work to build relationships with the people who are ultimately going to make the decision. If you can do it, the client, and build relationships so that they can… you know, having allowing somebody to go into court and risk 5 or 10 or 15 or 50 million dollars of your money, you need to know that person, need to have some sort of relationship with them.

And so start developing that relationship and they’ll let you do the 20 and 100 and 200,000 case uh that’ll come up and that’ll give you the pathway. Look for every opportunity you can to lead: in a deposition, in a trial, in an arbitration, in magistrate court, anything you can do. And then watch other lawyers. You know, I knew I could be a good lawyer because this was back in the day we did uh 70 or so motions in a row on Fridays. The judge had all the 100, you know, 200 lawyers down there and I was like number 42 out of the 70 motions that day. And after watching 41 other lawyers, I thought, “I can do this a whole lot better than that.” And so watch other lawyers both to see confidence in yourself, but also understanding where they mess up and look for the techniques that you like. So watch other lawyers uh to do so also, and a variety of other things.

You know, reach out to people, talk to people, form relationships uh inside the legal profession and inside the client world so that those people can do it. You know, I’ll help anybody do anything. You know, give me a call and you need an expert, I’ll talk to you and help you, you know. And I think there’s a lot of people that will do that. And young lawyers need to have the bravado or swagger to stand up and say, “Hey, can I do this?”

[24:37] Bill Yeah, I think yeah. And the one the one piece of advice I give, you know, the people under me, the consultants under me, I’m like: pick up the telephone and call a client one day and say, “Hey, I just wanted to say hi, how are you doing?” You’re texting them, you’re sending them messages on LinkedIn, your email—okay, I get that. But everybody does that. No one writes notes. I just wrote three notes yesterday and put them in the mail. I mean, my colleagues are like, “What are you, like, are you out of your mind?” I’m like, people need print. So particularly with client communication, I think one of the major errors is that we’ve become entirely too reliant on electronic communication. We’ve lost the personification and we could all uh talk more. Talk more on the phone.

[25:22] John Bill, you and I are old enough to remember that commercial where the guy walks into the room with about 10 people and says, “Hey, our client of 20 years just called us today and he’s going somewhere else. He says he doesn’t know us anymore.” And the guy’s got 11 airline tickets and says, “We’re going to visit our clients today.” And we got to visit in person, we got a visit on the phone. This is great, for instance, but that doesn’t form a relationship. And plus you got to be careful how you write because you do it so quickly some people get insulted and you don’t even mean to insult them. I try to reserve insults for the ones I really mean to. So go visit with them if uh if you get a chance and talk to them on the phone, but you’re exactly right.

[26:06] Bill Outstanding. Well, John Hall, thank you so much for being on the podcast. Hey, let’s hook up and do a webinar, whether it be for one of your clients or for an industry. Because the one thing I really like about what you said today is this is all about education and communication within the defense bar. Still not enough of it, and I think the more that we can multiply that, the better off that we’re all going to be.

[26:28] John Absolutely. We’ll do an ALC Webex soon and get you really involved in the organization, we’d love to plug you in.

[26:35] Bill Sounds great, John Hall, thank you so much, and thank you everybody for viewing another episode of the Litigation Psychology Podcast brought to you by Courtroom Sciences. I’m Dr. Bill Kanasky, we’ll see you next time.