AVOIDING GRIEVANCES AND LEGAL MALPRACTICE

Transcription

1 AVOIDING GRIEVANCES AND LEGAL MALPRACTICE LAURA A. CAVARETTA Cavaretta, Katona & Francis, PLLC One Riverwalk Place 700 North St. Mary's Street, Suite 1500 San Antonio, Texas Telephone: Facsimile: State Bar of Texas 18 th ANNUAL ADVANCED MEDICAL MALPRACTICE COURSE March 17-18, 2011 Santa Fe CHAPTER 6

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3 LAURA A. CAVARETTA Cavaretta, Katona & Francis, PLLC One Riverwalk Place 700 North St. Mary's Street, Suite 1500 San Antonio, Texas Telephone: Facsimile: EDUCATION St. Mary s University School of Law, San Antonio, Texas J.D with distinction (top 10%) Phi Delta Phi, John M. Harlan Society, Associate Editor, St. Mary s Law Journal University of Texas at El Paso, El Paso, Texas B.A. Journalism 1984 PROFESSIONAL EXPERIENCE Briefing Attorney to Chief Justice Carlos C. Cadena, Fourth Court of Appeals San Antonio, Texas Associate at Lang, Ladon, Green, Coghlan & Fisher, P.C. San Antonio, Texas Associate at Russell & Hollan San Antonio, Texas Shareholder, Plunkett & Gibson, Inc. San Antonio, Texas Managing Member, Cavaretta, Katona & Francis, PLLC San Antonio, Texas 2011 Present ADMITTED TO PRACTICE Texas, 1987 United States Court of Appeals, Fifth Circuit, 1989 United States District Court, Western District of Texas, 1989 United States District Court, Southern District of Texas, 1990 Supreme Court of the United States of America, 1993 CERTIFICATION Board Certified, Civil Appellate Law, Texas Board of Legal Specialization, 1993 Recertified 1998, 2003, 2008 AREAS OF PRACTICE Civil Litigation (defense) Medical Malpractice Defense Civil Appellate Law in State and Federal Appellate Courts 1

4 PERSONAL Born October 16 Buffalo, New York MEMBERSHIPS San Antonio Bar Association -Medical Legal Liaison Committee 1999-present -Chairman , , Co/Chair Bench-Bar Conference Committee Installation Committee Texas Association of Defense Counsel State Bar of Texas Defense Research Institute International Association of Defense Counsel Texas Bar Foundation HONORS Best Lawyers in San Antonio-Civil Appellate Scene in SA Magazine, 2004, 2005, 2007, 2008, 2009, 2010 Best Lawyers in San Antonio-Civil Appellate and Defense in Malpractice & Personal Injury Scene in SA Magazine, 2006, 2008 School Based Big Sister of the Year Big Brothers Big Sisters of South Texas 2007 OTHER ACTIVITIES Mentor Big Brothers, Big Sisters Member, Community Advisory Board Susan G. Komen Foundation 2000 Volunteer Attorney 2003, 2005 San Antonio Bar Association Community Justice Clinic Board Member 2009-present Family Violence Prevention Services, Inc. (The Battered Women and Children s Shelter) Speaker: What, Exactly, Is a Healthcare Liability Claim? (Advanced Medical Malpractice Course) State Bar of Texas, March 2008 Planning Committee, Advanced Medical Malpractice Course, State Bar of Texas March 2008 Planning Committee, Advanced Medical Malpractice Course, State Bar of Texas March 2010 Speaker: The Experts Analyze Obstetrics and Gynecology Malpractice Cases, RDI October, 1997 Speaker: Texas Tort Claims Act, St. Mary s/texas Tech University Law Schools Medical Malpractice Conference, November 2002 Speaker: Anatomy of a Lawsuit, San Antonio Chapter American Association of Critical Care Nurses, June 2002 Speaker: Hospital Privileges, Charting in Medical Records, Local Hospital in-house presentations Speaker: What exactly is a health care liability claim? State Bar of Texas 15 th Annual Medical 2

5 Malpractice Course, March 2008 Speaker: Health Care Liability Claims, Texas Advanced Paralegal Seminar, September 2008 Speaker: The Litigation Process: What to expect when a lawyer comes calling, Grand Rounds, General Surgery and Anesthesiology, UTHSC-San Antonio, February 2010 HOBBIES/LEISURE ACTIVITIES Organic gardening Running -completed 1 full and 8 half marathons REPRESENTATIVE CLIENTS More than 22 years of experience in claims handling, and analysis of claims, defense of litigation as primary outside counsel for the Bexar County Hospital District d/b/a University Health System in medical negligence, Tort Claims Act cases, civil rights and premises liability actions. Includes informal investigation of claims, recommendations regarding settlement of claims; participation in mediations, trials and handling dispositive motions and appeals. Represents physicians and other health care providers in malpractice cases for The Medical Protective Company. Handles all aspects of trial and appeal. Handles civil appeals for various clients, including hospitals, private companies and governmental entities in State and Federal Courts. Handles general civil litigation and insurance coverage analysis for various insurance companies. Represents physicians and nurses and other health care providers before State Licensing Boards. APPELLATE CASES HANDLED FROM 1990 to PRESENT Irma Roldan Walz et al v. Construcciones Modernas de Mexico, No CV (Tex. App.--San Antonio 2009) In Re Godwin, 293 S.W.3d 742 (Tex. App.--San Antonio 2009, original proceeding) Flack v. Hanke, No CV (Tex. App.--San Antonio 2009) Leonard v. Glenn, 293 S.W.3d 669 (Tex. App.--San Antonio 2009, pet. filed) City of San Antonio v. Pollock, 284 S.W.3d 809 (Tex. 2009) Aguilar v. Bexar County Hospital District, CV (Tex. App.--San Antonio 2009) Hochhiem Prairie Cas. Co. v. Appleby, 255 S.W.3d 156 (Tex. App.-- San Antonio 2008, pet. dism d) Parenti v. Moberg, No CV (Tex. App.-- San Antonio 2007) Brzozowski v. Southeast Baptist Hosp., No CV (Tex. App.--San Antonio, 2007) Cuellar v. Warm Springs Rehab. Found., No CV (Tex. App.--San Antonio 2007) N.P. v. Methodist Hosp., 190 S.W.3d 217 (Tex. App.--Houston [1st Dist.] 2006) Cox v. Vanguard Health Systems, Inc., No CV (Tex. App.--San Antonio 2005) Alexander v. University Health System, No CV (Tex. App.--San Antonio 2004) City of San Antonio v. Pollock, 155 S.W.3d 322 (Tex. App.--San Antonio 2004) 3

6 Hutchinson v. Montemayor, 144 S.W.3d 614 (Tex. App.--San Antonio 2004) Costello v. Christus Santa Rosa Health Care Corp., 141 S.W.3d 245 (Tex. App.--San Antonio 2004) Olveda v. Sepulveda, 141 S.W.3d 679 (Tex. App.--San Antonio 2004) Bustillos v. Bexar County Hosp. Dist., No CV (Tex. App.--San Antonio 2004) In re Evans, 130 S.W.3d 472 (Tex. App.--Houston [14th Dist.] 2004) Zuniga v. University Health System, No , 82 Fed.Appx. 385 (5th Cir. 2003) Herse v. Jimenez, No CV (Tex. App.--San Antonio 2003) In re Center for Health Care Services, No CV (Tex. App.--Houston [14th Dist.] 2003) Luensmann v. Zimmer-Zampese & Associates, Inc., 103 S.W.3d 594 (Tex. App.--San Antonio 2003) Wickware v. Sullivan, 70 S.W.3d 214 (Tex. App.--San Antonio 2001) Karagounis v. Bexar County Hosp. Dist., 70 S.W.3d 145 (Tex. App.--San Antonio 2001) Hanzi v. Bailey, 48 S.W.3d 259 (Tex. App.--San Antonio 2001) Hendrix v. Bexar County Hosp. Dist., 31 S.W.3d 661 (Tex. App.--San Antonio 2000) Silvas v. Ghiatas, 954 S.W.2d 50 (Tex. App.--San Antonio 1997) Reynosa v. Bexar County Hosp. Dist., 943 S.W.2d 74 (Tex. App.--San Antonio 1997) Montalvo v. Fourth Court of Appeals, 917 S.W.2d 1 (Tex. 1995) City of San Antonio v. Winkenhower, 875 S.W.2d 388 (Tex. App.--San Antonio 1994) Peek v. DeBerry, 871 S.W.2d 520 (Tex. App.--San Antonio 1994) Bard v. Charles R. Myers Ins. Agency, Inc., 839 S.W.2d 791 (Tex. 1992) John v. State, 826 S.W.2d 138 (Tex. 1992) Resolution Trust Corp. v. Thurlow, 820 S.W.2d 51 (Tex. App.--San Antonio 1991) Bard v. Charles R. Myers Ins. Agency, Inc., 811 S.W.2d 251 (Tex. App.--San Antonio 1991) 4

7 Avoiding Grievances and Legal Malpractice Chapter 6 TABLE OF CONTENTS CONCERNS FOR THE DEFENSE ATTORNEY... 1 CONCERNS FOR THE PLAINTIFF ATTORNEY... 2 ii

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9 Avoiding Grievances and Legal Malpractice Chapter 6 CONCERNS FOR THE DEFENSE ATTORNEY Defense attorneys face some of the same or similar traps encountered by the plaintiff attorney. However, more likely than not, the carrier will not file a legal malpractice or grievance, if the attorney commits an error. The defense attorney has a different problem. The defense attorney faces economic punishment for their violations. Some firms may only have 5-10 clients but those clients make up 90% of their business. Most of the time, unhappy insurance companies will not file a grievance or a legal malpractice lawsuit. Nevertheless, pulling a file is common for the insurance companies. Further, they can slowly phase the attorney/law firm out of work for that carrier. What is worse is that sometimes the defense attorney has no control over the problem and is not able to correct it. Based on a consensus of several defense counsel, below is a watch out list: 1. Multiple defendant doctors covered by the same carrier. Your co-counsel may not be your best friend. This field from a defense standpoint is very competitive. There is only so much business to go around. Your co-counsel may be reporting to the same company and as a part of their report, they are reporting your performance and conduct. What happens when you need to take a position contrary to a co-defendant covered by the same insurance company? To protect your doctor s position, it becomes necessary to file a sanction against another doctor insured by the same carrier. 2. Your defense expert s deposition goes poorly. 3. Documents can be a source of concern when reporting to the insurance carrier. What happens when your doctors tell you that he does not have certain records. You report the lack of records to the carrier and to opposing counsel. In fact, he does have the records. Later, it is determined that the doctor did have those missing records. As a result, you are on the losing end of a sanction and pay more in settlement because of the failure to produce the records. Who is the carrier going to blame? 4. Getting familiar with the insurance company and the adjuster is easy, especially after dealing with the adjuster for years. Yet, do not let this familiarity give you a sense that you can get lax with the report requirement or returning phone calls. 5. Super billing sensitive The insurance companies have become sensitive to billing and are scrutinizing each element of the bill. Are you billing on each file separately or as a group? What if the plaintiff designates 17 experts from coast to coast? There is no way that you can make this cheap for the carrier. This is not in your control but the insurance carrier will still be upset with the billing. 1

10 Avoiding Grievances and Legal Malpractice Chapter 6 CONCERNS FOR THE PLAINTIFF ATTORNEY From a plaintiff attorney s standpoint, there are many traps for the unsuspecting and the unwary that will earn them a grievance or a legal malpractice suit. One attorney said, With all the traps, why do we even practice in this area? The good news is most of them are avoidable with a little advance planning. After canvassing several plaintiff attorneys, the consensus is that the most common failures are procedural errors. Therefore, they are easily avoidable. Below is a list of the most common errors: 1. Sitting on the case without getting expert review. 2. Sitting on case without obtaining Chapter 74 report. 3. Sitting on case without ordering medical records to review. 4. Filing a case without the expert report. 5. Filing a case and not filing an expert report under Chapter 74 on 120 th day. 6. Failing to send a notice letter to extend 75 days and getting an abatement. 7. Failing to request a 30-day extension from defense lawyer or court for insufficiency challenge. 8. Non-suiting defendant thinking you will restart the 120-day clock. 9. Failing to get a causation expert. 10. Failing to serve the defendant doctor with the Chapter 74 report. Something else to keep you up at night: 1. Failure to timely designate your expert. 2. Failure to answer request for admission/discovery. 3. Failure to make proper objections to discovery. 4. Missing the statute of limitations. 5. Suing the wrong party. 6. Your expert s license has been revoked, not renewed or the expert is not licensed. 7. A flawed designation. 8. Your expert and/or his report is stricken. 2