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Medical Malpractice

A View from the Shady Side

A Defense Perspective Brian J. Nash T

hroughout my career, I’ve heard people reference lawyers on one side of the issue as the ‘white hats’ and those on the other as ‘the black hats.’ Due to the

fact that I am relatively new to the plaintiff side of practice, I figured I would just characterize myself as being one of the ‘gray hats.’ When I began my litigation career in 1975 after

completing a one year judicial clerkship, I returned to the insurance defense firm of Donahue & Ehrmantraut. Our clients were companies such as St. Paul Fire & Marine, Zurich-American, Chubb, Hartford and so on and so on. Over the years my practice was essentially and virtually exclusively (occasional dabbling on ‘the other side’) defense of general liability cases until the formation of NCRIC in the early 1980’s. After years of doing NCRIC’s defense work in medical malpractice, I then added to my favorite client list Washington Hospital Center, which some years later became a member of the MedStar Health healthcare organization. For reasons that are beyond the scope of this article, my

firm began in earnest its transition from the defense to the plaintiff side some years ago. I provide this background for those of you who may

not be familiar with me or my firm, Nash & Associates. We are one of those so-called boutique law firms specializing in medical malpractice, complex civil litigation and the much sought after “catastrophic injury” cases. Apparently because I can spell the word ‘defendant’ without having my hand shake with rage and disgust, I have been asked to share with you my thoughts on “medical negligence – the defense perspective.” I suspect I may be somewhat qualified to do just that – so here we go - but where to start…

In beginning this literary journey, I have wondered just

how qualified emotionally I am to give you a universal sense of a defense lawyer’s perspective on medical malpractice

cases. As those of you who have dealt with ‘us – the defense bar - know, we come in all shapes and sizes – figuratively speaking. Tere are those of my former defense confreres who see plaintiff ’s counsel as ‘bottom feeders’ with no real purpose in life other than to provide a steady source of cases for their own livelihood. Most interesting to me since my epiphany some years ago is that those same former colleagues of the defense bar now see me as a ‘bottom feeder’ as well. It’s been quite an interesting epiphany. For some defense lawyers, one size does fit all – no plaintiff lawyer is well intentioned or truly has the interests of the client at heart. Tis has been disconcerting to say the least. So with this disclaimer, I proceed on to give you ‘the

defense perspective.’ Will I admit that when a case first arrives on a defense

lawyer’s desk the first thought is: “how many ways can I figure out how to defeat this bogus lawsuit?” – I did exactly that -beyond any doubt. Step One: Tere are standard procedural issues that every defense lawyer analyzes including the obvious: Did this plaintiff lawyer blow the statute of limitations as to any of the counts? Did the plaintiff ’s lawyer run amiss of the procedural labyrinth called the Health Claims Arbitration Act? When is the Certificate of Qualified Expert due and will the opposing counsel make a mistake in either a late filing or an inadequate report attached to the Certificate? Is there some way that I, as a defense lawyer, can challenge the statutorily mandated qualifications of the certifying expert? Note – we haven’t even begun to consider the merits of the case. After engaging in the procedural defense analysis, Step

Two is to begin analyzing the substantive aspects of the medicine. Is there any doubt that a defense lawyer has an

Trial Reporter / Summer 2010 43

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