Skip to Content
Search Site Menu

Our attorneys are routinely contacted by the news media to comment on legal issues. To coordinate interviews, journalists should contact Gonzalo Perez, the firm’s administrator:
(954) 523-9922 or via e-mail at firm@hpslegal.com.

Category: Blog

HPS Legal Alert: POST-PANDEMIC JURY CHALLENGES

By Debra P. Klauber

July 6, 2021

As the judicial system begins to emerge from the pandemic, one of the most pressing issues for the court system will be the ability to empanel juries. Some recent figures suggest that a mere fraction of those called for jury duty will actually appear. In July 2020, a study found that 46% of jurors said they would actively attempt to avoid jury duty all together.

Confronting COVID-19 Jury Biases in Medical Negligence Cases

There is also an added challenge for attorneys in medical negligence cases who need to determine if jurors have significant biases due to their experiences during the COVID-19 global pandemic.

Given the extensive media coverage and the current acrimonious political environment, potential jurors may believe that all health care providers could be viewed as “superheroes in the fight against COVID-19”, while others jurors may believe that health care providers cannot be trusted. As a result of personal pandemic experiences, other studies show attorneys are likely to face other jury biases relating to mental health, economic burdens, distrust in scientific data, perceptions of morality and questions of authority.

What Can be Done to Address These Jury Biases?

One way the courts can confront these issues in medical negligence cases is to allow detailed questioning revolving around a potential juror’s attitudes, preconceived notions and prejudices about the health care environment in light of the recent pandemic.

The challenge for the attorneys, of course, is to question the jury to find express, and often implicit, bias, without impacting the entire jury panel.

One analogous line of questioning that has been permitted by courts across the country involves tort reform and related media coverage on excessive verdict and challenges in recruiting qualified health care providers because of increasing insurance coverage. The courts have consistently held that allowing attorneys some leeway in voir dire can help avoid the biases that can taint a verdict and result in a re-trial.

Key Takeaway

In representing plaintiffs and their families, we recognize that the jury selection process is critical to a fair trial because it is important for the jurors to be open to the testimony of our witnesses and willing to believe in each client’s right to recover for the injuries that have occurred or the damage that has been done. While our focus in voir dire is different depending on the unique facts of each case, there are some standard questions that need to be asked and, in light of COVID-19, this new line of inquiry should be front and center.

Work with your appellate lawyer to make sure that you are prepared with clear and concise questions revolving around (1) jurors’ concerns about being in a live courtroom setting; (2) jurors or family members COVID-19 health history (diagnoses, vaccinations, long-term health issues); (3) jurors or family members in the health care profession; (4) loss of income or other financial impacts due to the COVID-19 pandemic; and (5) any mental health or moral concerns arising out of or increasing as a result of the pandemic.

If you are about to take part in a jury selection process for an upcoming medical negligence case and would like to discuss your options, please contact Debra P. Klauber (954.523.9922) or any member of our Haliczer Pettis & Schwamm legal team:

 

HPS Legal Alert: WHY ARE MULTIPLE EXPERTS NEEDED IN BIRTH INJURY CASES?

 
June 4, 2021
 
A serious injury to a newborn child is a devastating event. Dealing with the complex medical-related legal issues, intertwined with the emotional and financial impact of this kind of injury on the child and the parents, requires experienced medical malpractice attorneys. A firm with the time, legal expertise and financial resources must effectively pursue the case and that requires familiarity with seasoned industry experts.
 
A Startling Trend
 
Attorneys who have regularly dealt with birth injury/medical malpractice claims have seen inexperienced lawyers misunderstand how to successfully litigate these cases to resolution, by taking serious missteps in enlisting the assistance of only one subject matter expert to support the case. That approach is almost always inadequate and unsuccessful.
 
For example, if the case involves negligence during the delivery of a child, an inexperienced lawyer might believe that only an obstetrician expert is needed to argue that the delivering physician should have done something different to change the unfortunate outcome. However, that type of analysis and strategy regularly proves insufficient in a courtroom. Important questions remain: Was the negligence related to pre-delivery or post-delivery care? What caused the newborn child’s injury and who is to blame? What is the strategy of the legal team when explaining the injured child’s damages and the family’s financial struggles to the jury?
 
The Value of Hiring Multiple Experts
 
Our decades of experience have shown that multiple experts are needed to prove who is responsible for the devastating injuries to a newborn child, what actions could have been taken to prevent the injuries and how the families should be compensated.
 
The below table outlines the different types of experts that should be considered when dealing with a birth injury/medical malpractice claim.
 
 
The Key Takeaway
 
A complex medical malpractice case involving a brain damaged child is not a simple or inexpensive task. Firms like Haliczer Pettis & Schwamm have the required experience and relationships with nationally-recognized experts to give the family the peace of mind and best opportunity for a successful outcome.
 
If you are involved in a birth injury medical malpractice claim and would like to discuss your options, please contact Richard Schwamm (407.841.9866), Jim Haliczer (954.523.9922), or any member of our Haliczer Pettis & Schwamm legal team:
 

HPS Legal Alert: SHOULD WE EXPECT A MEDICAL MALPRACTICE LITIGATION SURGE IN 2021?

 
May 19, 2021
 
The short answer is probably yes. 
 
When we talk about a “surge”, what we really mean are two things.
 
First, more existing medical malpractice cases will start to go to trial after the courthouses re-open. In fact, the Florida Supreme Court all but confirmed that this will happen when it entered an administrative order requiring the circuit courts to get things moving with case management orders and anticipated timelines for trials. We fully expect that ongoing cases, which have slowed or stalled due to courthouse closures, will regain significant momentum in the next half of this year.
 
Second, more cases will probably be filed for a couple of reasons. Patients are now seeing their physicians more frequently for regular visits, and they are also undergoing elective procedures at hospitals and surgery centers now that COVID cases are not taking all of the time and attention of the front-line workers in our healthcare system. This means more “opportunities” for medical mistakes to happen. Additionally, patients who have been injured during the pandemic will be willing to venture out to seek competent legal counsel to investigate their claims and represent them if litigation ensues.
 
As things start to ease back into a “new normal” it is likely, unfortunately, that some of the common mistakes that have plagued our healthcare system for so long (including the failure to timely diagnose conditions in the emergency room, failure to timely diagnose cancer, failure to timely diagnose life-threatening heart conditions like stroke or heart attacks, improper discharge from hospitals, negligent care of women during pregnancy, and a multitude of surgical errors) will reemerge as the continued hot topics in medical malpractice litigation. 
 
KEY TAKEWAYS
 
As a medical malpractice firm handling these cases on behalf of patients and their families, we expect the hospitals, doctors, and their insurance companies will soon realize that old litigation that had stalled in the court system will begin moving again in earnest.
 
The courts will be focused on giving injured plaintiffs in medical malpractice and other personal injury cases the opportunity to have their day in court. It also appears highly unlikely that those hospitals, doctors, and their insurance companies will be able to seek continuances absent extraordinary circumstances. This should lead to many more mediations, settlements, trials and jury verdicts over the next 12 to 24 months. At the same time, we expect new cases to increase and, given the new mandates by the Florida Supreme Court, future litigation should also move through the courts with more momentum than we have seen in the past. 
 
We remain ready, willing and able to work with our referring attorneys and clients to get ahead of this surge. We are actively preparing our ongoing cases for trial and would encourage our referring attorneys to bring any new potential cases to our attention as soon as feasible so we can be prepared to take advantage of the new case management practices and hopefully push those cases to a prompt resolution.
 
If you believe you have a qualifying case that needs immediate attention, please contact any of our HPS attorneys:
 

COVID-19 is Complicating Things: Likely Trends in Medical Malpractice

COVID 19 is complicating thingsWe hear daily about the public health and economic impacts of the Covid-19 pandemic. The news focuses first on the deaths that this horrible disease has caused. Second, the focus is naturally on the sweeping unemployment that the disease has caused and speculation on what the long term impact will be. These are undoubtedly troubling times. What do we think about the impact of Covid-19 on medical malpractice litigation? There are several trends likely to evolve into a new normal for medical malpractice lawyers.

First, because medical malpractice cases require expert witnesses and they often reside in cities where major hospitals and tertiary care centers are located, there was a lot of travel for depositions and conferences. This travel took the lawyers from Boston to New York to Los Angeles to San Francisco and more. It’s our view that because those very same depositions and conferences have been conducted via video conference for several months now that this will be the new normal in the medical malpractice litigation space. The amount of travel will be reduced significantly and, consequently, the cost of litigating these cases will drop and the billable hours available to defense attorneys will as well.

Second, those of us who practice regularly in the medical malpractice litigation space know that cases rarely settle until a trial date has been assigned and the insurance companies know that they’re either going to have to pay up in settlement or face a reckoning in the courtroom. Without trial dates that pressure cannot be brought to bear on the insurance companies who insure health care providers. How exactly this will alter case resolution strategies within particular insurance companies is still an open question. However, three possibilities seem most likely:

  1. One, the companies will realize that they don’t have to pay and they’ll keep their money as long as they can;
  2. Two, companies may believe that because without trials there will be great delays that plaintiffs will accept less money and attempt to resolve the cases for some number of cents on the dollar;
  3. Third, the impact of the pandemic on the health care delivery system itself has been unique. The providers have been focusing on Covid-19 patients and their emergencies while routine health care and serious, but not emergent conditions, have gone unmanaged. That probably means that there is a fair amount of medical malpractice being committed, albeit unrelated to Covid-19. This could represent a significant uptick in new cases sometime in late 2021 or early 2022.

We here at HPS have been monitoring the Covid-19 pandemic and its implications for our practice from the very start. We’ve implemented all of the necessary technology to conduct video conferences with just about anybody at any time for any reason. We’ve continued to notice cases for trial, albeit with the knowledge that the cases likely won’t go to trial. And, we’re even beginning to see some cases that arise out of neglect due to office closures, refusals to perform elective procedures, etc. What we will continue to tell the community, whether Covid-19 related or not, is be your own advocate in your healthcare routines and if you feel that you’ve suffered a loss or experienced a bad outcome due to medical negligence, call the attorneys at Haliczer Pettis & Schwamm. We can help.

Click here to download the article as a PDF.

Our priority is to maintain the safety and comfort of our clients during the COVID-19 global health pandemic. We offer an array of telephone and virtual meeting formats (ex. ZOOM) so you may speak with our attorneys while protecting you and your loved ones. If interested, please call us at (954) 523-9922 or email us at firm@hpslegal.com–to discuss all our confidential remote meeting options. We look forward to continuing to help you in these challenging times.