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Medical Malpractice

Te same principles of timely and full disclosure apply to all other phases of litigation.

Delaying discovery is a

major problem toward early or at least timely case resolution. Aggressiveness takes many forms. If you take basic steps such as providing medical records or HIPAA forms so that defense counsel can get access to your client’s subsequent medical treatment, you are solving an age-old problem of defense ignorance of the value of your case. I can not tell you how many times as a defense lawyer I had to go through the subpoena process of record custodians after I waited for discovery responses in order to find out what the history of care and disability was for a plaintiff. What are you gaining by not making this information known early in the process? One answer is simply the setting of a low reserve. Tis unequivocally translates into delays in recognition of your case’s value and late resolution of valid cases. Can you control the speed with which insurers respond to your requests for resolution? Not really. However, you most assuredly can get their attention and more rational evaluation of predictive value (i.e. case reserve) early in a case. While there are certain insurers who simply will not

engage in early case resolution no matter what you do, they are becoming more the minority. On an insurer’s ledger sheet is the component of defense costs – attorney’s fees, expert fees, deposition costs and the like. If you can demonstrate early to an insurer that your case has validity and value – notwithstanding the delays occasioned by their counsel – they will often want to resolve your case earlier than later. It serves no purpose for the insurer to continue to pay defense costs in a case that they are ultimately going to want to settle. You need to convince them early on that they will want to settle and do so before costs on both sides become a contributing factor toward impeding resolution. Te adage ‘the squeaky wheel gets the grease’ does have

validity in this context. Aggressive and thorough disclosure of your case should be your custom and practice, not the exception. Take it from one who knows – delay on the part of the plaintiff ’s counsel just buys time (and billing) for defense counsel. Time means money? It sure does – unfortunately it’s your client’s money and your fees and costs that are delayed! Even though the initial investment of costs for records and reports can diminish the bottom line of your business, they are essential in moving a case forward. Try the new approach being suggested here. Te worst that can happen is that you are all the more prepared to timely and competently try your case if that turns out to be the ‘resolution’ the defense requires. I have lived the life of a defense lawyer. Having done so,

I know the principles of timely claims evaluation I have tried to share are time-proven and true. It is up to you, My Fellow

Trial Reporter / Summer 2010 47

White Hats, to take more control of the frustrations we all encounter through timely and thorough unveiling of your next great case. As for myself and the gray hat I apparently wear for now, as Martin Luther King Jr. put it – “We may have all come on different ships, but we’re in the same boat now.” Let’s all make this a quicker and more successful boat ride together. 

Biography Brian J. Nash graduated from the Columbus School

of Law in 1974. He served as the Law Review’s Casenotes Editor. He is admitted in Washington, D.C. and Maryland. Upon graduation from law school, he clerked for the late Honorable Herbert F. Murray in the United States District Court for the District of Maryland. He has been a partner in several law firms, most recently

in the firms of Montedonico, Hamilton, Altman & Nash and Wharton, Levin, Ehrmantraut, Klein & Nash. In March 2002, he formed his current firm of Nash & Associates. He is a member of the American College of Trial Lawyers and the American Board of Trial Advocacy. His practice areas are personal injury with special expertise in the fields of medical malpractice and catastrophic injury.

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