Episode #44 – Healthcare Litigation with Attorney Jason Long

Jason Long, Attorney with London | Amburn Attorneys at Law joins the podcast to discuss several healthcare litigation topics. Jason and Dr. Bill Kanasky talk about what the impacts of Covid-19 have been – both good and bad – on witness training, depositions, and some lessons learned thus far. They also chat about the importance of talking to healthcare professionals on how to answer questions about documentation, and setting expectations around documentation, to prevent from being trapped by reptile questions. Jason and Bill also highlight the challenges of working with nurse witnesses who, due to the circumstances of specific cases and the sympathy involved, may require emotional psychology training before testifying. They discuss the challenges of foreign-born healthcare professionals as witnesses and how to manage them, plus how things will change in jury selection and voir dire in light of Covid-19. And they conclude with their thoughts on the lack of development of younger defense attorneys and the importance of preparing them for litigating cases, especially with the plaintiff’s bar so heavily investing in the development of their younger plaintiff attorneys.

Full Episode Transcript

[00:04] Bill Welcome to the Litigation Psychology Podcast, brought to you by Courtroom Sciences. I’m Dr. Bill Kanasky, and very pleased and honored to have my good friend from Knoxville, Tennessee, Jason Long. How you doing, Jason?

[00:20] Jason Doing good, Bill. How are you?

[00:22] Bill Jason, I am out of my mind because it’s—it’s still hot here in Florida, but I’m hoping that the weather finally uh, cools off and I can start enjoying some outdoors. How—how is the Knoxville weather these days?

[00:36] Jason Uh, Knoxville weather is great, although we’ve had flooding the last two days. But we’re full into fall season. It’s football weather, although that’s usually—that’s a good thing in Knoxville, not so much this year. We’ve had—we’ve had a tough three weeks after having expectations raised.

[00:53] Bill Well yeah, and by the way, don’t pick on me with all the Tar Heel stuff in the background, and I’m like, sure, I see that Vols helmet right behind yourself.

[01:00] Jason That’s—that’s my balance to you. You’ve got your Carolina blue; I’ve got my Tennessee orange.

[01:06] Bill Okay, I’m okay—I’m okay with that. I’m okay with that. Well, uh, let’s start off this podcast by, um, just asking you… well, first of all, tell us about your firm. Tell us about your firm and your practice and the types of cases uh, that you’ve been working on uh, at London | Amburn.

[01:21] Jason So London | Amburn, we’re a 25-attorney firm which, for Knoxville, is actually a fairly large firm. We’re—we’re a community where, you know, 40 I think is the largest firm in town, so 25 is pretty—pretty stout. Um, what’s unique about us is that we’re, unlike some of the other larger firms in town, we’re exclusively dedicated to healthcare. We do dabble in some other types of litigation and transactional work, but primarily healthcare, probably 80 percent of the practice. We like to build ourselves sort of as a one-stop shopping for physicians and healthcare providers. We do everything from medical malpractice defense to regulatory work, to Medicare/Medicaid reimbursement, to transactional mergers and acquisitions, partnership agreements, uh, employed physician agreements, that kind of stuff. So we’re sort of a full-service uh, healthcare law firm.

[02:17] Bill Outstanding. And uh, you and I and the firm have been working together for a long—I think over 10 years.

[02:26] Jason Oh yeah, I’m sure. Yeah, yeah.

[02:27] Bill Uh, and—and great—great attorneys there and more—more importantly, great uh, great people, great human beings. How has this pandemic um, influenced you and your work and your—your ability to um, defend your clients? Because I’m sure that you guys have had to make some pretty severe adjustments, right?

[02:48] Jason We have. Uh, I think like most people, travel uh, for litigation attorneys especially… well, you know, in our area of work, uh, there’s a great deal of travel. I think when you and I first met, uh, we were defending a case up in Kentucky for a—for a hospital up there. And I probably spent, you know, every day of the week, five days a week for a good month at a time, up at that hospital meeting with witnesses and—and working with experts and getting that case that we were on ready for trial. Covid has obviously slowed all of that down substantially, both in good and bad ways. Uh, you know, there’s—uh, the connection that we have with our clients and getting out to meet them and getting out to be with them in person, I think obviously helps. It helps build the trust uh, that our clients have in us and—and the work that we do for them, helps with our communication with them. Um, at the same time, you know, I think a year ago probably very few of us had heard of Zoom and worked at all with this—with this platform. Now everybody’s familiar with Zoom and it’s—it’s really amazing some of the things that you can get done on it. So being able to access our clients quickly… you know, I think the other day I’ve got a deposition coming up and—and realized sort of the last minute we were scheduling the plans to take our provider’s deposition, she had not been through a good, in my opinion, witness prep training. So we were able to schedule that with you through Zoom, sort of a last-minute flyby. And I know a year and a half ago, that would have been impossible; I would have had to be on your calendar a month—a month, month and a half ahead of time. So that’s been very helpful.

[04:33] Bill Yeah, I do miss the face-to-face contact. I really, really do. Um, at the same time, like you said with Zoom, um, assuming that you have a good Wi-Fi connection, you can squeeze in a lot of things last minute that otherwise you could never do. So it has created some flexibility. Jason, have you done some depositions via Zoom?

[04:56] Jason I have. I’ve done probably a couple dozen depositions since March exclusively by Zoom, and then some that have been a mix of people live and people by Zoom.

[05:04] Bill Can you tell our audience, which are primarily uh, defense counsel and uh, insurance claims specialists, what are some of maybe the do’s and don’ts that you’ve learned uh, probably the hard way, um, when you’re entering into a Zoom deposition? Because it is not—it’s not the same thing as a face-to-face deposition.

[05:28] Jason No, uh, I agree. And you know, it obviously depends on whether I’m the one taking the deposition or the one defending the deposition. For me, if I’m defending the deposition, uh, I think one of the do’s is to have separate connections for you and your witness. I—I want to be in the same room with them. I’m never going to let my witness appear remotely from me just because they need to have that assurance, they need to have me there and trusting in my representation of them. And it’s just harder to access, it’s harder to communicate with them. Certainly, you can’t—I mean, you’re never going to communicate privately to—to influence the answers, but you may communicate privately with them about the—the course of the deposition and—and how things are set up, and there’s information that you want to relate to them. So the first “do” for defending a deposition by Zoom is that I still want to be in the—in the room with my witness. And the second is, you know, you tend to want to put a camera obviously on the witness themselves. These Zoom depositions court reporters are going to require it, but I want a camera on me too because the way Zoom operates, as we all know now, is that when one person starts speaking, their—their video kind of becomes the primary video. So I want those objections to be properly on the record and easily understood. I want an opportunity to communicate directly with opposing counsel as they’re taking the deposition, those type of things. Um, so those would be the two biggest do’s, I think, of defending the deposition. Uh, the other things uh, and again if I’m defending, I think document transmittal and production can be very difficult via Zoom. It takes a lot more organization and coordination. So the most successful depositions I’ve had are the ones where I’ve been able to work with opposing counsel beforehand, say “here are the documents we’re going to use, here are the exhibits I’m going to introduce, here’s a copy for you, here’s a copy for everybody who’s going to be attending,” and we’re sort of all on the same page to begin with. Now, you don’t always want to do that. Sometimes there are documents you want to hold back and—and want to get the—the witness’s, you know, genuine reaction to being presented with that document. So under those circumstances, just having the availability to share on screen or—or transmit via email or whatever is the best resource. But I would say organization of documents and exhibits is probably the—the biggest change or the biggest hurdle using Zoom.

[08:12] Bill Yeah, it can definitely be a headache if you are not organized. I could certainly see that. Um, so in healthcare litigation, uh, one of the things I know you deal with on a regular basis, and I get stuck with this oftentimes when uh, training witnesses to give depositions or even trial testimony, are issues regarding um, lack of documentation in the medical record. Um, plaintiff attorneys love to just pounce on uh, maybe record keeping that’s not so great, uh, or that’s not perfect, or that’s—or the worst is when it’s actually missing. Um, how do you generally attack those issues in your—in your witness prep to deal with them? Because I know a lot of nurses uh, and physicians uh, can get pretty defensive about their documentation, and they tend to fall in the traps pretty quickly with those general um, almost reptilian questions saying, “Well, a good nurse documents everything that’s important, right?” And they go, “Yeah, yeah,” and then they bring it out and there’s only this much documented. How do you generally talk to your healthcare providers about documentation to get it through their head it doesn’t have to be thorough or perfect to be adequate and reasonable?

[09:31] Jason That’s right. And—and so the communication is all about confidence building in my opinion, because I think you’re right. I think providers tend to be very defensive about their documentation. You’ve heard the, you know—I don’t know how many times I’ve heard “if it’s not documented, it didn’t happen” adage. So you know, they—they tend to—and I’m very much this way myself—I tend to be very self-critical and I want to do things perfectly. And if I haven’t done something perfectly, I feel like I’ve been a failure. I think a lot of providers have that same approach. So when you point out gaps in the documentation, when you say, “Boy, I really wish you would have documented this—this uh, check, this med pass or whatever,” and it’s not in there, then they start to feel very guilty about it. So I think building up their confidence and assuring them: One, just because it’s not documented doesn’t mean that you didn’t provide appropriate care. And then talking to them about their routines and habits, what they normally do for patients uh, usually starts to—sort of starts to click with them and they start to say, “Well, of course I would have done this because I always do X, Y, and Z. Maybe I didn’t chart it, but I usually only chart things that have an impact on patient care. The patient looked fine when I went to check on them, maybe I didn’t document that that day, but I would have if I had seen anything out of the ordinary.” Starting to talk to them about their habits and routines and—and their trust in themselves as competent providers, they start to realize, “All right, maybe the documentation is not perfect, but it’s certainly defensible. It’s certainly adequate to explain what I’ve done in this case.”

[11:13] Bill So Jason, you’ve been working on these cases for quite some time. How—um, and I think I know the answer to this question because my head’s starting to hurt if I just think about this topic—the evolution of electronic medical records… um, I know, right? Epic. What are some of the land mines and pitfalls you’ve seen with electronic medical records and how that can kind of set your witness up for disaster? Because the way I’ve seen it is that the way it’s printed out in a document looks nothing like it looks on the screen that’s being entered, and the witness can get lost pretty quickly.

[11:51] Jason That’s exactly right. And that to me—that’s always been the biggest problem. It continues to be the biggest problem or pitfall with electronic record keeping. That’s—and—and it’s not an issue, I’ll tell you Bill, um, when facilities first started going over to electronic record keeping, it was not an issue that we appreciated. And it was probably about two or three depositions in where it was clear to me that the nurses were confused in answering questions, that they didn’t feel comfortable with the—with the printed chart in front of them, and they were just answering wrong. They were answering incorrect—incorrectly uh, for things that they did or did not do, until it finally clicked with us that they’re not seeing the same thing when they document that we’re seeing when we sit in that deposition or when we sit at trial. So we started the process of—of educating our nurses. “This is—this is what it looks like when it’s printed out. Let’s try to figure out together what you may have clicked on or what you may have—what you may have documented on the computer that then prints out in this format.”

[13:03] Bill Um, speaking of nurses, I think these are some of the most difficult witnesses to prepare. How do you deal with cases particularly when you have a lot of sympathy—say a birth injury case—and you have a—a nurse that’s really super emotional about a birth injury that’s significant? How do you—I imagine you can’t just throw one of those witnesses into the deep end because they’re coming in probably crying and upset, can’t talk. Talk about maybe about how you have to handle those types of witnesses a little bit differently due to the nature of the case and the amount of sympathy involved and that they feel terrible about it.

[13:43] Jason Well you know, so I—I think it requires a lot of communication. So those witnesses, especially if they’ve never been—this is true for all witnesses and all clients, but if they’ve never been through litigation before, if they haven’t experienced any of this, and then if they’re—if they’re uh, doubly impacted by having a particularly emotional case, uh, it can’t be a, “Well, we’re going to meet a week beforehand and we’ll go through some questions and some general rules of depositions and you’ll be good to go.” Um, these people need a lot of hand-holding, they need a lot of—they need a lot of care and attention. Um, and it requires quite frankly, you know I think uh, what an attorney brings most importantly to those situations is a sense of empathy. Uh, being able to relate to what the witness is going through, being able to understand their desire to—to achieve good results for—for patients and if that doesn’t happen, feeling a certain burden uh, on themselves. You know, I have seen—and you probably don’t remember it—but we were—we were prepping a witness up in Kentucky, you and I one time, and—and we spent an entire morning trying to just get through the “Introduce yourself, tell us about yourself, and let’s figure out who you are.” And she was struggling with every single question and every single point. And it wasn’t until you stopped um, our discussions and said, “Let’s talk for a few minutes. Let’s go off the record so to speak, we’re not mock-depoing anymore, and let’s just talk about what’s frustrating.” And a lot—a lot of information came out in that 30-minute, one-hour conversation that it was clear that deposition prep wasn’t what she needed at that moment. What she was—talking through some of these other issues and—and sort of getting her mind clear on it. And once she got past that, once—once we were able to get everything out in the open and we were able to talk about personal issues that she was having, when she came back to talking about the particular case, uh, she was a lot more effective just in terms of answering the questions, answering them correctly and—and keeping a certain level of confidence about her. So digging into what’s going on behind the scenes uh, is—is crucial, right?

[16:01] Bill Well, particularly now, those—what I’ve seen in the last particularly last four or five months is, you know, I think nurses kind of by definition are more emotional than physicians for the most part, and you’re always dealing with some sort of emotional issues with nurses. And this was before COVID, Jason. So now you got COVID, and so what I’m seeing now is that emotion has doubled because their job—I mean, their jobs are dangerous now and they’re still going, and they’re coming home, “Am I bringing this home to my family?” You know, they’re getting tested a lot. It’s a lot of angst and worry and anxiety. Um, and then if they’ve had a patient with COVID that did pass away, that’s adding um, to the stress. So I think dealing with nurse emotions and witness prep going forward is probably going to be the rule rather than the exception. I think that’s something a lot of uh, defense counsel need to—need to think about. I mean, on the other hand, another issue I see that’s continuing to grow—and I’ve been addressing this issue for 10 years, but it keeps growing because of the nature of medicine—is the growing population of foreign-born healthcare providers. And they’re from all over the world. And um, um, you know you have uh, nurses from everywhere, you have doctors from—from everywhere. And the cultural shock to our legal system can somehow uh, or sometimes be a major barrier to getting these folks to relax. Because they come in with this, again, this heightened level of anxiety because what justice means in their home country may not be what justice means here. Uh, can you talk about some of your experiences with the—the foreign-born providers and how you may have, you know, language barriers, cultural barriers, and how that may lengthen the—the time that you need to prep those people for testimony?

[17:59] Jason Sure. So we… you know, and as you bring all this up, it—it just re-emphasizes for me… obviously I’m coming to these cases from uh, the perspective of, you know, an American-born citizen who was born and raised—probably from age 16 or 17 knew I was going to go into law in—in some capacity—was very familiar uh, with our system of justice and went through law school and now, you know, try cases on a regular basis. So a deposition is nothing for me. Um, it’s—it’s just another day in the office. And having an appreciation, whether it’s on the emotional end or on the “just this is a foreign concept” end, of what the witnesses are going through is something that I have to keep in my mind a lot because I—I get frustrated, as I’m sure you do, as I’m sure the attorneys who are listening or even the adjusters do, when witnesses just struggle. They—they just—they just don’t get it and they can’t apply what we’re working on with them from the… you know, more particularly to your question, so we have represented a number of hospitals in a number of groups in rural areas where there’s actually incentive for foreign-born doctors to come in and practice um, and—and receive benefits uh, for doing so. So we’ve had a number, and—and language barrier tends to be the hardest at least initially. That’s the most obvious at least to me because we get some—some doctors with some very thick accents. And I practice in Tennessee, Kentucky, Georgia, North Carolina, which are—which is an area of the country where we have some pretty thick accents of a very different variety. Uh, and we’re not, you know—this is a very homogeneous uh, community in Knoxville. We have foreign-born doctors, but you know, the population of Knoxville is probably 80 percent, 85 percent white, Caucasian, you know, European Americans.

[19:59] Bill Yeah, so jury of your peers does not really apply to these foreign-born folks.

[20:03] Jason That’s exactly right. Yeah. Uh, and you know, uh, you—you walk a doctor in there who is—who is from a—a foreign country, who maybe has a different religion uh, and has certainly different cultural uh, ties than—than 90 percent of this community, and—and those are immediate barriers uh, that you have to overcome, not only in their comfort level and trust in the system of justice, but when you’re prepping them to—to put them on the stand and have them testify, that’s going to be an issue. I mean, heck, you know, jurors will look at you the wrong way in Knoxville if—if you got your—if you got your medical license from, you know, University of Florida, uh, because then we don’t want the Gators up here. Um, so you know, all of those things go into the evaluation, but there are also things that you have to work on. You have to—you have to make that language… and I guess with respect to the language barrier and the accent, having witnesses be very deliberate in their communications, understand that there’s going to be a communication barrier there. I mean, you can’t change their accent overnight and you wouldn’t want to, but you can have them be very intent on being clear and being—being communicative to a jury. From a cultural standpoint, you just got… that’s—that’s hard, you know? And there’s a certain amount of it, you know, I’m not convinced that one thing we always try to do during deposition or during trials at least is to humanize our doctors a little bit. We want them to be people of interest the jury is interested in listening to. Uh, so you know, a certain amount of their cultural differences can be highlighted and can be, you know, can be explained to a jury, and it makes that doctor more interesting to the perspective juror. Um, but they’ve got to, you know, again it’s—it’s—it’s they’ve got to have confidence in the system itself and they can’t be concerned that this is not a jury of their peers and so they’re not going to get a fair shake or they’re not going to get a fair trial when they go in front of the jury.

[22:19] Bill Yeah, I found that the—the length of the prep pretty much doubles with the foreign-born witness because you’re dealing with all the cultural and language stuff and it just takes time. They come in with a pretty natural distrust of the system and knowing—knowing who’s going to be on the jury and no one’s going to look or sound like them, I think that’s a—I think that is a—a—a huge challenge. Uh, Jason, let’s wrap up with the final question. What—once the court system starts to get back on their feet and we start trying cases again, what have you guys talked internally about how you’re going to have to change your jury selection and voir dire methodology to account for how COVID has impacted people’s lives? Because I would argue as a jury consultant, whatever script you were using before, I would just burn that. I’d burn that in your backyard on your next bonfire. I think we’re all starting from scratch. I get a lot of phone calls, “What did jurors think about this now post-COVID?” and my answer is, “Well, I don’t know yet.” Like, we’re trying to collect data, it’s becoming slow. What I know is that COVID’s impacted everybody across the board, it’s not a certain population. And um, from a health standpoint, from a mental health standpoint, from a financial… even white-collar people have lost jobs, right? And so, have you really talked or thought about um, “How—how am I going to ask questions in court to the venire to figure out how COVID has impacted your lives?” Because if you ignore it, you’re going to be in big trouble.

[24:05] Jason Well you know, that’s—that’s really interesting. And I can’t say internally that we’ve started those conversations. We’re still living day to day, trying to—trying to survive, you know, what COVID has wrought so far. But I—I think that’s a really interesting point. I think it’s—I think it’s correct. You know, my wife told me… I remember the day I came home in March. You know, everybody… there was a day there about the third week of March where virtually everybody just packed up their offices and came home and said, “Okay, we’re doing this at home thing for a while.” Um, and the day that I kind of packed everything up and came home, my wife… she was in tears over the stress of this and what was going to happen to our kids and school and everything else. Um, and I’m trying to calm her down and say, “You know, everything’s gonna be all right,” and she made the comment that, “Nothing is gonna be the same after this.” Um, and I at the time… like, I thought she was maybe overreacting or overstating, but I think you’re right. This is going to have an impact for years and years and years and maybe forever into the future into how people just approach their daily lives and approach decision making and everything else. What—what I think um, is that COVID and—and maybe I conflate sometimes COVID with our current political climate… um, I don’t want to get too political in a podcast about—about litigation, but I do think that we’re in a very divided, divisive political climate, and I think COVID has highlighted that even more in terms of how people are responding to uh, and—and taking seriously or not taking seriously the threat to—to health uh, that COVID has presented. So I think those are issues too that are going to come into play in the jury selection and, you know, how exactly we’re going to tease that information out and find out, you know, how people have been affected by this… I don’t know that I have an answer yet. If you have an answer, I would love to hear it.

[26:07] Bill Well, I think the answer is—is what we’re doing now at Courtroom Sciences, is we are doing jury research. Um, I—believe it or not—I have done three uh, in-person live socially distanced mock trials in this pandemic in certain locations where um, that weren’t hot spots, where we could wear masks, socially distance, and you know, do it in a way that everybody agreed was—was safe. And we’re starting to collect data. We’ve also done some online focus groups and mock trials for lack of a better term—it’s difficult to call—use those labels when you’re online, but we’ve been able to use Zoom and Webex to do some of those things and talk to jurors. And so I think going forward, which I know the insurance defense industry is not thrilled about spending money, but I think they’re going to have to spend some money because I don’t think you’re going to be able to use your pre-COVID experiences to start picking juries going forward. You’re kind of starting from scratch. So the use of, I think, focus groups and mock trials is going to be a necessity going forward for the defense because I am positive that the plaintiffs are going to be doing them, because they will—they want to win. And if they’re going in to the trial with a lot of data and weaponry that they’ve spent the time and the money on to—to access, and you’re going in with your pre-COVID hunches about what the jury’s going to do, I think that could be a—a pretty dangerous environment. And I think—I do think that the plaintiffs’ bar is counting and banking on the defense bar not matching those efforts. Um, I lied, I have one more question. I’d like to have one more question for you before we wrap up. What… because this is another big issue I—I’ve been hearing about a lot… um, the development of younger defense attorneys, I feel, is entirely behind young plaintiff attorneys. Young plaintiff attorneys are kicking them in the teeth over and over again. What do we do about this problem? What are you guys doing at London | Amburn to get your younger attorneys the skills, get them up to speed? Because I think—I think that there’s a real big difference between younger plaintiffs’ attorneys and younger defense attorneys at this point, and that’s going to lead to major trouble in the next five to seven years.

[28:31] Jason Yeah, I agree. Um, I think uh—I think we are lagging behind in the development of defense counsel, especially at a young age or right out of school. I can tell you internally… I love being at London | Amburn for—for many reasons, but probably number one is the leadership of this firm very early on saw not only that it was important to have everyone on the team have a certain level of experience and ability, um, they thought it was good marketing. They were projecting 20 years down the road when Jim London, our senior attorney, was no longer driving across the country to try cases every week, or Dale Amburn was staying more at home rather than—rather than out on the road for clients. They knew that there was going to be that next generation wave of Knoxville medical malpractice litigators, and they wanted to have a stockpile of those of us who are now in our 40s uh, early 50s or even late 30s who could match up. So—so they did a very aggressive—or they—they were very aggressive in getting us into the courtroom, getting us into the—into depositions. They had almost a template of, “Here’s how you work a case,” and—and work us through that and give us as much experience as possible early on. What it required uh, from them was a little bit of a step back. You know, the—the traditional law firm model is a bunch… we kind of refer to them as silos. Uh, you know, Jim London is a senior attorney in this firm, and he builds up as much of a client base as he can. And as soon as he has more clients than he can take care of, he brings on an associate to assist him. And then as more clients come, associate number two comes, and you kind of build up that system of these clients seeing Jim London as their attorney, or Heidi Barcas, another senior attorney in our firm. Although some of these younger lawyers will do some work on it, they recognized pretty early on that—that they don’t want to be a firm where people only come here because of Jim London or only come here because of Heidi Barcas. We wanted people to come here because London and Amburn has a brand of excellence. So—so we’ve been pretty aggressive in developing our younger lawyers. I think other law firms are going to have to do that. I hope that market forces dictate that. I hope—I hope that the defense bar starts saying, “If we don’t do this, other firms are doing it,” and they will start to take away… they’ll—they’ll come a generational time where you might have 15 attorneys at one firm who are all experienced and capable and ready to take on the world, and there aren’t that many other law firms that have very many attorneys who are in that position. So it’s a commitment from the firms. Uh, it’s probably a little bit of an understanding from the clients that they’re going to have some fresh faces involved and they can’t expect that the senior partner of a particular law firm is going to be micromanaging every aspect of their case. They have to have a little bit of faith that those younger attorneys are—are not working without a net. They’re—they’re working with the guidance and with the approval of their senior attorneys. So you’re still getting the same level of representation, but you’re also assuring that 20 years from now, you can keep going back to the same firm and have quality attorneys representing you.

[32:03] Bill Sounds like an excellent plan. Jason Long, thank you.