The second Healthcare Matters interview with John Degnan (Full Interview)
In this episode, Healthcare Matters interviews ALL MD attorney John Degnan on the recent phenomena of American big-box retail stores offering healthcare services, whether higher medical malpractice insurance policy limits increase the dollar value a settlement when a claim is indefensible, apology in medicine and the new Reptilian Theory employed by plaintiff counsel in medical malpractice lawsuits.
Degnan is a shareholder at BRIGGS & MORGAN. He practices law in Minnesota, representing clients in business disputes, as well as members of the legal and medical communities in professional matters.
Degnan is a charter member of the Association of Liability Lawyers in Medical Defense (ALL MD), a nationwide organization that connects healthcare providers with attorneys who specialize in medical malpractice defense.
Interview was recorded October 14, 2015
Mike Matray: Welcome to Healthcare Matters, where the medical and legal communities come together to discuss healthcare matters. I’m your host Mike Matray and today’s guest is John Degnan. He’s a shareholder at Briggs and Morgan in Minneapolis, where he regularly represents clients in business disputes as well as members of the legal and medical communities in professional matters. He has more than 39 years of experience handling medical malpractice claims, prescription drug and pharmacy matters, products liability, and issues relating to EMTOLA and the Federal False Claims Act. This is Mr. Degnan’s second appearance on Healthcare Matters. Welcome back, John.
John Degnan: Thank you. Glad to be here again.
Mike: Well why don’t we start? A relatively recent phenomenon in healthcare delivery has been the expanding availability of healthcare in America’s big-box retail stores. CBS recently purchased Target’s in-store health clinics, making it the largest provider of healthcare of the retail outlets. How do liability risks differ within these big-box retailers, as opposed to a doctor’s office? And how would you recommend these new healthcare delivery sites mitigate the risks?
John: Well, I first think that it’s a real good benefit for our people to be able to come to such minute clinics, etc. But providers should keep in mind that it doesn’t change the standard of care. It’s basically the same standard of care as it would be for primary care doctors or specifically for an urgent care center. And I think that the real tension is between the efficiency factors, because they’ll see so many people, but at the same time the need to completely document the care. And that includes particularly good discharge instruction handouts on follow-up care that’s needed, and even more important if there’s a necessary referral to make sure that it’s a clear referral for further care.
Mike: That’s my understanding. I’ve been told that it’s basically evidence-based healthcare. And that the biggest liability would be if there wasn’t a referral. If a more pressing healthcare issue was discovered.
John: Yes. And the danger with the duty to refer is this. If there is a need to refer and it’s not done, then that provider could be held to the same standard of care as that specialist. So if it’s a cardiologist that should’ve been getting a referral, they well could have a cardiologist to express standard of care issues, if there was a duty to refer. So it’s particularly important for providers to keep in mind.
Mike: Okay. In your professional experience, do higher limits on a physician’s medical professional liability insurance policy increase the dollar value in the case of settlements when you have an indefensible claim? In other words, can your physician or entity be over-insured, and conversely, can a case be made that the lower the limit, the lower the risk exposure?
John: Actually it may seem counter-intuitive, but I’ve found in my experience that the lower the limits sometimes the more expensive it is to try to settle a case. When you have high limits, you always base the valuation of the case on what you think in terms of liability but also potential damages.
On the other hand, when you have a low limits case, let’s say you have a $2 million policy, and there’s a potential for a loss in excess of that, let’s say 3 or 4 million dollars, plaintiff’s counsel will typically come in and say, “Okay, we’ll settle for the limits and I’ll give you a specific period of time. If you don’t settle within that time then all bets are off.” If there’s an adverse verdict and it should’ve been settled then the insurer essentially has a limitless policy. What that causes is most times the carriers will be almost compelled in a bad case to settle wherein they may have defended the case successfully, but for the limits problem. I’ve been personal counsel for a number of practitioners as well trying to urge settlement in such situations. So actually the more insurance, the better. I don’t think that that increases the value of the claim or the settlement.
Mike: That’s fantastic. One of the hottest trends employed by the Plaintiffs Bar in medical liability lawsuits today is what’s referred to as the Reptilian Theory. Can you explain the concept of the Reptilian Theory, as well as how it influences jurors and how defense counsel can diffuse this strategy?
John: There are a couple of individuals touting as the plaintiff’s counsel around the country. And they call it the Reptilian Theory because it’s meant to apply to…or play to jurors’ more basic instincts. That is almost…they call it reptile because it’s really meant to play to basically your brain stem.
John: It’s a reaction. And essentially the way it works is that the attempt to set up one these are the safety rules, there’s a danger if the rules aren’t followed and therefore then the jury feels like they have to address this exposure to protect the plaintiff in society. For example, they may say, “Well, isn’t the doctor’s first duty to put the patient’s safety first?” And indeed, what is important is you start answering simple questions and it’s going to become a slippery slope, and pretty soon it appears that there are a lot of safety issues that weren’t adhered to. And the way that it’s avoided by defense is not to get into the did-not did-to, type of back and forth, but rather change the theme to what your theme is. And that is the most important priority for a doctor should be to treat every patient as an individual. And so you change the circumstances. And when they say, “Isn’t it always true that you have to provide for the safety by doing,” such and such? The answer by the defendant doctor, the deposition, or a trial is, “It depends on the circumstances.” And then you always bring it back to the circumstances of that particular patient to say why it was reasonable under those circumstances. So it works sometimes, but only if you slide into playing the reptilian game with the plaintiff’s counsel.
Mike: Okay. How successful has the Reptilian Theory been? Have you seen it increasing verdicts or even judgments?
John: Well, I think that it’s probably not as successful as what’s been touted, but when it is successful it is because the physician and his or her lawyer have fallen into the trap of talking about and responding to safety issues. Safety issues and going down the road and pretty soon it looks like you’ve violated safety issues, where you don’t have to. As I said, you know it depends on the circumstances is one of the first things that should occur to the physician in answering some of those questions. When it does happen, sometimes the jury will get worked up and indeed respond by saying, “Gee, we do have to protect the plaintiff and society.” I don’t think it’s as successful as they claim, but certainly it’s one that defense lawyers and doctors have to pay attention to, so that they are able to deal with it in the appropriate way.
Mike: It’s an interesting departure from what had traditionally been this is completely a focus on the plaintiff and the damage done to the plaintiff, and how she or he needs to be made whole. Now it’s not necessarily the damage to the plaintiff as much as the potential damage to society at large. It’s an interesting departure.
John: Right. Yeah, it really is a shift from what I call, playing to a motion with the jury, to playing to this is a safety issue, we’ve got to protect from this danger and you’re the ones that can make a difference. And so it just plays out differently. Again, you just have to be aware of what they’re doing, so that you can stay on your own theme rather than fall into theirs.
Mike: You had mentioned that there was an interesting case you might be interested in discussing. Could you tell me a little bit about the case and your involvement?
John: Well, I tried cases over the years. The one that stands out though that really I think is instructive about the importance of physicians keeping a good rapport with patients at all times, whether or not there’s a bad result or not. I had a case a while back that involved a plaintiff who became a paraplegic, or quadriplegic, when he fell in the hospital.
John: They sued the hospital and the primary care physician who supposedly didn’t pick up the fall in time. Everybody else was out of the case by the time we tried the case, but the doctor still cared about his patient and that was clear from just the way he approached it on the witness stand. And also the patient still cared a lot for the physician. I still remember one of the best quotes was, “He saved my life.” And when a jury sees that a physician is trying to do his or her best, then indeed most times they will find for the defendant physician.
And when you have a caring physician that has strived to keep a rapport and a relationship with a patient, it makes a difference – sometimes even from having a claim made, but particularly when you have to try a case it makes a difference many times between winning and losing.
Mike: Where do you fall in the apology in healthcare debate? Whether insurance companies or state laws should protect a physician insured if he apologies for an amorous outcome? And a lot of times there’s been a lot of studies, especially the University of Michigan health system that an upfront apology often leads to less claims of medical liability.
John: I think that it’s a positive thing. It’s obviously something you have to be careful in how it’s expressed. “I’m sorry for what’s happened to you,” as opposed to, “It’s all my fault.” But oftentimes there’s a sympathy card, etc., sent. Sometimes plaintiff’s lawyers have threatened to introduce it when I said, “If you don’t I will,” because I think that it shows the humanity of the medical provider. So as long as it’s not in the form of admitting fault, if you will, but actually showing some empathy and sympathy, I think it’s a positive thing.
Mike: Excellent. Well thank you for coming on Healthcare Matters again, John. And I hope to see you again soon.
John: Thank you very much. Appreciated.