All Posts

Posted in Newsletter on December 22, 2022   |  by Gary Burger

A Case Study in Strategic Representation

The legal process is often slow. Investigate. File a lawsuit. Conduct discovery. Go to trial. Depending on the case, litigation can take a year or two or more.

Despite this hard reality, great law firms can quickly assess and identify cases to strategically shorten this timeline for the client’s benefit.

Burger Law recently had just such a case. And it is a good example of how our firm’s ability to identify such a case and then aggressively pursue it can greatly serve our client’s interest: In this resulting in a settlement close to a $1MM in less than three months.

The Facts

In August, we were approached by a potential client. He asked us to consider taking on an out-of-state wrongful death case of a relative.

The facts were, as they often are in such cases, tragic. A man, “George,” 70 years old, was admitted to the hospital for a broken leg. The day after surgery, he fell in his hospital room. Hospital falls are called “never events.” This is because there are many things medical providers can and must do to prevent or mitigate against such dangerous events: low beds, railings, floor mats, bed and chair alarms, “sitters” who are with patients who may be cognitively limited, and more. Yet despite his unacceptable hospital fall, George was discharged that same day. Over the next six months he never fully recovered and he ultimately died six months later.

Yet as tragic as George’s death was, wrongful death cases are notoriously difficult. Proving the medical care someone received “fell below the standard of care” of medical professionals, and resulted in substantial harm and death, is hard. And it can be time-consuming and costly.

Our initial review of a few hundred pages of George’s medical record was mixed. And while we might have called this a “fair” case, we decided to take it on September 1.

Shot Across the Bow and Pressure

The first step in any such case is sending the medical provider, in this case, a hospital, a “letter or representation,” notifying them that we are on the case – a shot across the bow.

However, because most every law firm notifies medical providers as we do, the second step is more critical. And it separates law firms from “great law firms.” The second step is pressure. The more the hospital sees that you are aggressively getting records, asking tough questions, and pursuing your client’s interests, the more seriously they will take your case. We have the experience to know you can’t bluff pressure. Only informed pressure can be intimidating.

To exert informed pressure, we began by getting as much personal information from George’s family. This included notes taken by George after his hospital fall, caretaker notes, medical bills, anything that would help our case. Our client’s family we extremely helpful in this process.

In wrongful death cases, medical records are the most significant evidence. Knowing we only had some medical records, we immediately requested medical records directly from the hospital. This not only gets us the information we needed, it also demonstrates to the hospital that we are serious about this matter. Pressure.

We also worked with attorneys in the state where this incident occurred to get all of the records promptly. Ultimately, we got over two thousand pages.

With George’s death only a few months past and knowing we had a small window to let the hospital know that we were going to aggressively pursue this matter, we spent a few normal work days and one long weekend in late September reviewing every page of medical records; and we created a detailed spreadsheet and timeline which we cross-referenced and linked to each page in the records.

We also compared records George’s family had obtained earlier from the hospital and compared them to the more complete records we received.

Decision to Fast Track and Unrelenting Pressure

What we found during this detailed review was astounding and reframed this case. It not only moved from merely “fair” to “good,” but more importantly we recognized it was a case that we could fast-track with some hard work and smart lawyering. As it turned out, it worked. Less than three months later we had negotiated a pre-lawsuit settlement close to $1MM.

Most significantly, the record review laid bare the hospital’s cascading errors and revealingly the efforts to keep those errors private. For example, we learned that records produced to George and his family, who had not hired an attorney at the time they requested them, did not include a reference to the hospital fall. At all. A fall significant enough to break bones.

And the so-called “complete” records we obtained were also missing a fall “incident report.” And some electronic documents included “icons” that appeared to be associated with the hospital fall, but did not link to any document.

And perhaps most intriguing was a reference in one “case managers” notes to something called a “ghost chart.” It appeared the ball was being hidden.

Our detailed cross-referenced timeline and spreadsheet helped paint a compelling story of the substandard care George received and the harm caused by it. In addition to the fall not being reported, the medical records show that the hospital did not fully examine George to see what happened in the fall – no x-ray, nothing. Instead, George was simply discharged – nothing told to the family.

And despite continued pain in his leg, back, and hip; and despite follow-up visits, it was not until a month later when George, so delirious because of his pain medications, went back to the hospital that they finally did an x-ray and found he had broken his hip a month earlier. And a week later they decided to x-ray his back which hurt and it too was broken. Finally, a few weeks later a third x-ray revealed that the fall damaged his previously-repaired leg.

Error after error. Negligence in our mind. But it takes more.

We have medical experts across the country who can also review records and give us their opinion on whether “it is more likely than not” substandard medical care “caused” harm and death. As we do in such a case, we hired medical provider experts for George’s case to both inform us and to help us prepare for litigation.

When we returned to the office after the weekend-marathon review of medical records, we had an attorney team meeting to discuss what we had found and the way forward. The apparently missing records was both a “gap” in our evidence but also a huge vulnerability for the hospital.

What are they trying to hide? We decided to leverage this vulnerability and contacted the hospital’s “risk management” office to inform them that we wanted these missing records – ghost records, fall reports, everything and we did not pull punches.

We told them we were very troubled by the implication that they had hidden evidence from the family and were doing the same for us. The silence on the other end of the phone was deafening. Unrelenting pressure.

A short time letter we contacted the hospital again with names of medical providers we believed provided sub-standard care and asked if the hospital would be representing them. Pressure.

We sent follow-up emails asking “when are we going to get those records?” Pressure.

Endgame

Finally, in mid October we called the hospital’s risk management representative and notified him of our intent to sue by the end of the year. Pressure. And we told him that we could draw a straight line from the hospital fall to George’s death six months later. Tenacious pressure. Silence.

When the silence broke and the risk manager all but admitted that the hospital fall and the care George received after the fall was a problem. And while not wanting to entertain the thought that the fall might have led to George’s death, he asked for short summary of our “theory.” Not conceding it was a “theory,” and mentioning our experts, we provided it to him. Pressure.

The called ended with the risk manager asking if we would be interested in trying to mediate the case before we filed suit. Knowing that our pressure was working and the fact that mediation is not binding, we spoke to our client and he agreed to mediate in November.

For the next month, we continued our unrelenting pressure. We sought George’s medical bills. We continued to push for the “ghost records” and “incident report.” We identified medical providers by name we thought provided substandard care and we let the hospital know.

One doctor had retired, so we found him online. We obtained Medicare bills and records. We successfully lower liens and we drafted and redrafted and redrafted our mediation memo laying out our arguments.

And as a final act of pressure, we provided our confidential mediation memo to the hospital just days before we mediated. We did so to let the hospital know we were knowledgeable, we were prepared, we were serious, and we were seasoned trial lawyers ready to file suit and try the case.

The result was good. We were able to settle for close to $1MM, less than three months after our client hired us. Had we not worked this case so hard and fast, and identified it once we could strategically shorten the normal litigation timeline, it could have gone on for years.

And while we are good at what we do at Burger Law, when the outcome is in the hands of a jury, getting a settlement like as early as we were able is often preferable to clients.

Of course, while some people may think that a strategically shortened timeline means less work for lawyers, for good lawyers it only means compressed harder work. Hitting a case hard and fast; working weekends and nights. But doing so can be especially rewarding when you get a good result like this for clients.

“It is not the critic who counts; not the man who points out how the strong man stumbles, or where the doer of deeds could have done them better. The credit belongs to the man who is actually in the arena, whose face is marred by dust and sweat and blood; who strives valiantly; who errs, who comes short again and again; who spends himself in a worthy cause; who at the best knows in the end the triumph of high achievement, and who at the worst, if he fails, at least fails while daring greatly, so that his place shall never be with those cold and timid souls who neither know victory nor defeat.” – Teddy Roosevelt.

Schema