Attorneys bringing lawsuits against health care organizations and providers face great difficulties discovering what they will need to successfully advocate for their clients. Aside from federal and state protections for “peer review” activities that offer defendants many barriers to hide behind and make it difficult to achieve the desired documents and information, the complexity of health care organizations and how they conduct their business makes it very difficult to demand the right document with the right wording and titles. This complexity also makes it difficult to determine the best representatives of the defendant organization to depose or serve with interrogatories. An experienced and savvy consultant and/or expert witness is critical to guiding all but the most experienced trail lawyer going up against a hospital, health system, or other provider organization.
I have been involved in cases dealing with, among others, physician credentialing, fall prevention practices, surgical protocols for robotic surgeries, managed care discounting practices, hospital management contracts, and abused patients. In most of these cases the ability to understand the organizational structure of the defendant along with the various committees, task forces and other legal entities that comprise the decision making tools of hospitals and health care systems was instrumental in guiding the discovery process in a way that was efficient as well as effective.
The Medical Staff organization in a hospital along with hospital based committees and task forces and the governing board’s own structure of committees all have legal responsibilities that must be properly understood to ferret out the information needed to properly assert a claim against a hospital. The credentials committee, executive committee and chairs and chiefs of the Medical Staff are but a few of the key players in such litigation. The hospital based committees of quality assurance, process improvement, infection control, patient safety, operating room, and risk management each have important responsibilities and relevant documents that must be uncovered. Files relating to state, federal, and JCAHO standards and inspections must also be searched properly to identify long standing problems and known risks to patients and others. The Governing Board, as the ultimate authority in a hospital or health system, has its own committees and functions that must fully be explored and understood to avoid missing critical information relevant to the litigation underway.
In each and every instance noted above the ability to know the correct terminology to request the relevant documents and to know what might contain useful and meaningful information is a necessary prerequisite to a successful discovery effort that will lead to the desire outcome for the plaintiff.
Engaging an expert/consultant in the early stages of the lawsuit is cost effective and can often substantially increase the speed with which a negotiated settlement can be achieved as well as the amount of such settlement.
The expert/consultant should be involved along with the nurse consultant or other clinical expert that will guide the evaluation of the proposed lawsuit and determine the likelihood of success as well as the optimal strategies for pursuing the lawsuit. While it is often clear how to pursue and document the clinical errors made during a course of treatment the supporting role of the hospital and its employees and agents needs a more nuanced approach to assure the participation of the hospital in whatever final settlement or judgment evolves from the case. This is the proper role of the hospital administration expert/consultant.