In medical malpractice cases – or any type of legal case for that matter - the divide between plaintiff and defense is as wide as a football field. You’re taught from day one in law school that the opposing counsel is the enemy and in order to win the case for your client, you must treat the other side as such. But when it comes to medical malpractice cases, what if it were different? What if both sides could work together pre-suit to define and clarify the issues that exist between the patient and the health care provider?

A 70-year-old man, who was previously rendered paraplegic by a work-related injury, was admitted to the hospital with a diagnosis of colonic obstruction. Surgery in the nature of reduction of sigmoid volvulus, sigmoid resection and creation of end colostomy was performed. During the next five post-operative days, the patient experienced abdominal distension, dark red stoma and severe pain, with virtually no stool emanating from the ostomy tube. An abdominal X-ray was taken five days after surgery that showed continued colonic distension with gas, but considered the possibility of either residual obstruction or post-op ileus — a partial or complete blockage of the bowel that prevents the content of the intestine from passing through. All residents and attending physicians agreed that this represented a post-op ileus without any other clarifying studies. Finally, on day seven, a new attending surgeon ordered a CT examination. The patient was immediately taken back to surgery, where the surgeon confirmed that the ostomy connection was to the rectum as opposed to the proximal colon. Corrective surgery was performed that day, as well as three other subsequent corrective surgeries, but the patient unfortunately died two months later. The causes on the death certificate were cardiopulmonary arrest, end organ failure, sepsis and abdominal/peritoneal infection.

Once retained by the patient’s family, I immediately visited the patient’s wife and two adult children. A documentary video was prepared showing the independence the decedent exhibited in running his farm machinery and taking care of his personal needs by utilizing a series of pulleys that he designed himself. I also included compelling statements by family members of how much the deceased did for them and meant to them. All records and radiology studies were then procured and used to prepare a chronological chart of the events along with comments. Intraoperative and post-operative theories of liability were developed.

Shortly thereafter, I contacted the risk manager of the hospital to arrange a meeting with the defense counsel. At the face-to-face meeting, I showed defense counsel the video, gave them a copy and reviewed the above chart, which made references to the Bates-stamped medical record — allowing them to copy my entire file. Exactly one month later, we met again and, this time, defense counsel presented a PowerPoint presentation, essentially admitting liability both as to the intraoperative and post-operative events. A fair and representative settlement was reached that day for a lump-sum amount. In addition, the hospital promised various changes to its health care system to improve the delivery of services to its patients.

The case settled in less than eight months from the date of the incident, and in less than six months from the death of the patient. This extraordinary result was obtained because of the disclosure, transparency and mutual trust and respect that counsel had for their clients, for each other, for the system and their commitment to this process. It is estimated that more than $225,000 in litigation costs were saved by both parties.

There is no question that this procedure may not fit every case. However, there is also no question that this option of pre-suit disclosure and the discourse of issue exploration and settlement should be explored in every medical negligence situation. Study after study has shown that the financial and emotional toll that the present process takes on patients and health care providers alike has reached unprecedented heights. Patients complain that dredging up the emotional details of their experience and resultant losses during the chaotic vagaries of the litigation process to which either they or their loved one were exposed is as traumatic as the original insult itself.

Physicians complain that the stress of practice is difficult enough without having to worry about dealing with insurance companies and their defense lawyers when litigation is brought against them. All of this stress is magnified when plaintiff and defense lawyers engage in complicated legal arguments involving questions of privilege, peer-review documents, admissibility of testimony of expert witnesses, etc. The list goes on and on.

At the end of the day, no one really wins — not the doctors, the patients or the lawyers. I remember the words of my good friend, the late Al Sarowitz, a great defense lawyer in his own right, who said: "Ted, just remember, win, lose or draw, at the end of each case, you lose a little piece of yourself." Truer words were never spoken. This same axiom applies to the litigants, who years later can recite the particulars of a case in which they were involved, chapter, line and verse.

There is a better way. Just as the prognosis of a disease process is in most cases markedly improved with early detection and treatment, so, too, will the litigation process be markedly improved by the identification and treatment of those cases that can be subject to the above procedure. Electronic medical records may make the process much more difficult, but this issue, also, can be subject to the transparency process so that all operative facts can be culled without the necessity of a lawsuit, as long as both counsel and the health care provider are committed. If this process is employed, transactional costs would be markedly reduced, which should be enough of an incentive to health care providers.

Time will tell whether this approach can work. Will both sides have the intellectual and intestinal fortitude to explore this new frontier? Can the traditional walls put up by opposing counsel be torn down for the sake of all those involved? Hopefully so. •

Theodore A. Schwartz is special counsel to the Locks Law Firm in Philadelphia. He specializes in medical malpractice, although he represents seriously injured plaintiffs and plaintiffs’ estates in other types of personal injury litigation. He is past president of the Pennsylvania Association for Justice and the Civil Justice Foundation, and has been honored on several occasions, not only for his professional activities, but also for his intense involvement and association with Special Olympics Montgomery County.