Collaboration Among the MPL Defense Community is Needed to Counter the Aggressive Plaintiffs’ Bar

How to Validate Mixed Signals Related to MPL Risk

More than 150 Medical Professional Liability (MPL) defense attorneys, claims leaders, reinsurers and others gathered in Atlanta on July 27–28 at the 4^th Annual American Legal Connections (ALC) conference. The program was heavily focused on nuclear verdicts and high-value claims that have been sending mixed signals about MPL risk. The conference presenters shared different ideas on how to validate that the risk is real and significant, and how to best respond to and even prevent it.

True to its name, ALC is one of several networks forming to offer some cohesion to the MPL defense community, specifically to counter the well-funded, well-organized, well-connected and aggressive malpractice plaintiffs’ bar. The need for such cohesion transcended the entire meeting as a rallying cry.

While much has been made of social inflation and its believed effect on the risk and magnitude of malpractice claims and suits, there was no definitive conclusion that social inflation is gathering steam and that the wave of high-value claims and suits is the front end of a tsunami. Senior Vice President for TransRE, Rich Henderson, shared his authoritative data on the trends in nuclear verdicts across the U.S., which point to another year of 50+ verdicts in excess of $10m.

That said, there was agreement that the plaintiffs’ bar had adopted and shared methods for shaping the perceptions of the health care system in the U.S., which has swung from providers being perceived as the altruistic heroes of COVID to villains who symbolize inaccessibility and inequity.

Shared Insights

More specifically, presenters cited plaintiff strategies from podcasts to reptile theory to baseless settlement demands as becoming ubiquitous across the country, not just by local jurisdiction. For example, Dave Poston, Esq., CEO of Poston Communications, a Florida-based crisis and litigation communications firm, shared stories of MPL plaintiff firm-sponsored podcasts with a theme of true crime or injustice designed to cast suspicion or raise the ire of listeners toward health care providers.

My colleague Adam Schaffer, MD, Senior Clinical Analyst for CRICO, and I presented national data on high-value claims from our Candello database and then walked through a process that CRICO claims managers use to employ data in their negotiation process for claims being settled. The former was intended to share some unique clinical causation data on high-value claims, and the latter was meant to show how one can counter an aggressive plaintiff attorney using data to avoid an unnecessary overpayment of a claim.

While interested and curious about data and its practical use, the audience of attorneys and claims professionals did not demonstrate a comfort level with data as a defense tool. Instead, attendees were more familiar with and likely to enlist the support of consultants and economists in the pricing conversation when settling a case with an aggressive plaintiff firm.

Dr. Schaffer’s Key Takeaways:

• Bringing in national defense counsel to assist, but not replace, local counsel should be considered, especially in high-value claims or when national plaintiff counsel is involved.
  
  
• Plaintiffs’ attorneys, especially national ones, sometimes engage in aggressive tactics.
  
  
• Bringing in an experienced economist to assist the defense in determining what is an appropriate life care plan (the plan that spells out the expected ongoing medical costs for someone with a serious lifelong injury) is useful for the defense.
  
  
• The defense attorneys and others at this conference had a lot of respect for the experience and wisdom of seasoned legal practitioners when it comes to malpractice defense. There was some skepticism about the value of data as a tool to help defend malpractice cases.
  
  
• Disclosure and offer programs and the legal and regulatory challenges arising from the Dobbs decision on abortion represent additional areas of interest.

Conclusions

Our conclusion is that, just like patient safety, risk management, and claims professionals before them, defense attorneys are on the front end of a journey to discover how MPL data and litigation analytics can inform and support their work, not replace or undermine it.  The notion that one needs to rely on the expertise of veteran legal professionals or data is a false choice.  There is great potential for data to be used in litigation analytics in a way that augments the well-honed instincts of MPL defense professionals.