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Medical Malpractice


Tey are set at an early point in a case. While they are subject to modification over time, those modifications are not favored if they are far in excess of the original valuation made at the case’s inception. When they need to be significantly adjusted, time is a key ally to the insurer. No company likes to ‘bump’ a reserve significantly at any one given period of time. My experience has been that insurers would rather spread-out the adjustments so as not to have a dramatic impact at any given time on the bottom line. Again, not all companies approach the reserving process in the same manner; however, there are common issues and approaches taken regardless of the company. Te initial reserve is a key time in the life of a case. I stress this point since I truly believe that understanding


the process and the psyche of adjusting reserves is critical to a successful, timely resolution of a plaintiff-client’s case. In my experience on both sides of the courtroom, I


have come to believe that one of the worst mistakes made by plaintiff ’s counsel is not providing as much information about a case’s value at a very early stage in the claim/litigation process. Too many times I have heard the mantra (and more so now in tough economic times): “I might as well file since the only way I’m going to get money is to get a court date.” While I am a firm believer that this is a truism in today’s litigation world, I also believe that it obscures a critical factor in achieving any form of meaningful early resolution for many cases. Tere is no doubt that the economic burdens of a


plaintiff ’s malpractice practice are tremendous. I must admit, I had no true appreciation for what those costs were – it can be and often is simply staggering. What this has led to in many instances, however, is a desire to file cases quickly before a full assessment of a case’s potential value is revealed. We are all well aware of what a life care plan can cost.


As we are trying to allocate dollars for experts and deposition costs, there is a tendency to delay obtaining these reports as a cost-savings measure. I am becoming more and more convinced that obtaining documentation of your case’s value through life care plans and/or economic reports in the early phase of litigation (if not before) is critical to helping establish a meaningful reserve for the insurers. When defense lawyers submit reports setting forth items of special damages and case value predictions, that section of the report is often described as ‘too early to determine.’ Why? If the defense lawyer is not given information of past and future special damages and the nature and extent of injury early in the process, they do not have sufficient information to report. General predictive values are then attached to a case based on a company’s reserving strategy. Tis is where the problems associated with early resolution many times occur.


46 Trial Reporter / Summer 2010 What transpires next is the seemingly endless and costly


discovery process. Of course, this is many times necessary to establish the validity of your case, but it is simply a mistake to unnecessarily delay the revealing of the ‘true value’ of your case. You can not always control the insurer’s perception of your case’s validity from a liability standpoint, but you can control their assessment to some degree of risk potential by simply providing key information about exposure when you reveal early in the process the damages you will be seeking and the nature and extent of your client’s injuries. Remember: reserves are initially set early in the process and insurers are reluctant to make significant alterations in a short time frame. If you provide this information early in litigation, you avoid the defense lawyer’s bailout response – “to early to determine.” While you do not directly participate in the setting of a case reserve, you can most assuredly affect the setting of the reserve through early disclosure of your damage claims. Simply put – if you have a significant claim, let the defense know it early. Tere is no doubt that the discovery process is the bane of a plaintiff lawyer’s existence in many instances. A good defense lawyer has developed methods by which to have a case progress. Tere is the form written discovery. I recognize that there is sheer frustration when you receive interrogatories asking about when your living client died and who is the personal representative of the estate or conversely questions about your client’s current activities in a wrongful death action (when only a séance could provide those answers). However, failure to timely and completely respond to proper discovery is yet another way to further delay resolution of your case. Be aware that receipt of responses to outstanding discovery is calendared by good defense lawyers. While they may not (and often do not) respond in a timely fashion, they are primed to file the ubiquitous motion to compel when you are late. Sure – there is always the ‘courteous’ or ‘civil’ approach. “You are late so I’ll be late too – no harm no foul.” However, and I can not stress this enough, by you being timely and complete with your discovery responses, you are enhancing the chances that a proper reserve will be set by the insurer. Delay serves absolutely no purpose for plaintiff ’s counsel. While one might cynically argue that it serves the interest (i.e. monetary) of defense counsel to string-out a case, you must learn to look beyond defense counsel. Tey do report; they are required to do so frequently. Your discovery responses will provide new insight into the potential value that must be attached to your case. Even if defense counsel does not take the time to read your discovery (we’ll put aside whether they bill for doing so) in a meaningful fashion, they are almost robotic in their practices of timely forwarding discovery responses to the insurer. It is done like clockwork in most defense law firms.


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