Medical Malpractice: From Error to Judgment

Kyle McEntee:

We're joined today by Adam Deutsch, a personal injury lawyer who primarily practices medical malpractice litigation. You say that you always wanted to be a trial attorney. What is it about this type of work that excited you?

Adam Deutsch:

I think a lot of it has to do with what I always thought a lawyer was. When you watch TV or movies and you see a lawyer, you see a trial lawyer, the guy getting up there asking if you ordered the code red. So to me, that was sort of always the most exciting part about it.

And I also grew up with it. My dad was a trial lawyer. He was always on trial my whole childhood. And I saw the enjoyment that he got out of it in terms of just the investigation, the digging in, trying to find the smoking gun, and then getting to present it. And I just always kind of knew that that's what I wanted to do.

Kyle McEntee:

So what's interesting is that your dad was actually on the defense side, and you're a plaintiff's lawyer. How did that come about? Was he telling you, go do that? Or was he telling you, no, come be like me? And you're like, no, I don't want to be like dad.

Adam Deutsch:

He had been in the 80s at one of the biggest medical malpractice firms in the city. It's called Bower and Gardner. And it was a behemoth of a medical malpractice firm in the 80s. They had some problems with kids coming on and the kids of the partners coming on. And at some point, in 1990 or something like that, he left and started his own firm with a bunch of people. And when they started the firm, they decided that there was going to be a nepotism rule where no children of any of the partners were ever going to be allowed to work there.

So I knew I could never work at his firm. I did defense work for the first three or four years of my practice because it was good to see that. And after that, my dad pushed me. He said, you're going to be happier as a plaintiff's lawyer. You'll make a lot more money as a plaintiff's lawyer. And I think the business over the years on the defense side changed a little bit in ways that gave him the bad taste of things. And he really pushed me to come to the plaintiff's side. And it's the best move I ever made.

Kyle McEntee:

So I think a lot of people say something like, “oh it's good to see what it's like on the other side, on the defense side.” But why? Why is that so valuable?

Adam Deutsch:

It gives you just sort of a different take on things, a sort of insight into how, at least in my field, how the insurance companies are looking at cases, how they're evaluating cases. And as plaintiff’s, we look at them from the flip side. And I think, obviously, it's always good to just have that insight of what your adversary is thinking, what they're thinking, how they're evaluating something. And I think it makes you a better lawyer regardless of which side you're on.

Kyle McEntee:

The defense doesn't really get to pick their cases. But on the plaintiff's side, you do. What is your initial conversation like when you're meeting with clients to try to decide if it's a case you want to pick?

Adam Deutsch:

Surprisingly, it's pretty quick. I've been doing medical malpractice primarily. We do about 80% of our work is malpractice, maybe 85%. And then the rest is just sort of general personal injury work. My partner has been only doing medical malpractice for about 40 years. Over time, you kind of get a sense of what something might be a case or what's not going to be a case. And you kind of get an idea of that pretty quickly. Doesn't mean that we're always right, but at least we have a sort of sense of something.

So the initial phone call or meeting with the client is just kind of, tell us your story, tell us why you are coming to us. Everyone that comes to us at least has some feeling somewhere that something went wrong. So they generally have an idea of what that is. And in medical malpractice, especially, the cases kind of fall into like a handful of categories.

They're really all the same. Even if the medicine is different, the cases are the same. It's either the doctor didn't identify something, or the doctor ordered the right tests, but then didn't follow through with them or failed to diagnose something or did a procedure technically, did the procedure wrong, right?

So once we sort of have an idea of what category it is, and if the case is, you know, if the damages are big enough that it makes sense financially to take on the case, we can usually make that decision pretty quickly.

Kyle McEntee:

And when I think about med mal, I'm usually thinking something went badly wrong: the hairy hand, the missing organ, the errant scalpel.

Adam Deutsch:

I wish I could get more of those cases.

Kyle McEntee:

Those are some big verdicts, right? Or big settlements at least. So the world of medical practice is so broad. The knowledge base must be so broad too. So how do you approach that?

Adam Deutsch:

I always say that if I had been willing to study a little bit harder, I would have rather been a doctor than a lawyer. But unfortunately, in college at the time, I don't think I was prepared to put in the work that it really required to be a doctor. It's really why I love the medical malpractice work because I just find learning the medicine incredibly interesting and learning all different areas of medicine incredibly interesting.

It definitely takes a lot of work. It's why a lot of lawyers, personal injury lawyers don't want to do the medical malpractice stuff because it's easier to do a car accident or a trip and fall or something. I happen to love learning the medicine and find it really fascinating and interesting and I enjoy it.

Kyle McEntee:

What do you do to learn it?

Adam Deutsch:

A lot of reading, a lot of medical journals, a lot of peer review literature, reading of books, textbooks, stuff like that to try to get an understanding of it. Then meeting with our experts.

Really any good medical malpractice case is based on the strength of your expert. So we have experts in every field from surgery, neurosurgery, to orthopedists, to dermatologists. I mean, you name it. So sitting down and talking with them and they teach us a lot and then just doing a lot of our own research.

Kyle McEntee:

Given the business nature of a plaintiff's personal injury practice, you're not getting paid for that time you're spending learning, at least not directly, hourly. Does that ever make you want to do less or is it just like you've got this thirst for knowledge, and you figure you'd be able to make money off of it somehow later?

Adam Deutsch:

I think the nature of the practice is that on probably greater than 95 or 97% of the cases that we take in, we end up getting a settlement or a verdict. So with the understanding that we're going to probably make money on almost every case, you're happy to put in the work because the more work you put in up front in terms of getting the proper experts, the better chances that you have to settle that case more quickly because you're letting the defendants know like, look, I got the goods, right? I got a good expert. I have a good theory. This is why we think they did something wrong. And oftentimes if our expert is correct on it, you can get a quick settlement because the defendant's expert says, yeah, he's right.

So putting in the time makes sense. And there's a lot of money to be made as a plaintiff's trial lawyer. If you look hourly, even in terms of all the hours you may put in, I'm sure my hourly billable rate would be higher than probably anyone on Wall Street. I don't mind putting in the work and I enjoy it. You're learning about medicine. It's interesting.

Kyle McEntee:

What's the first thing you do when you have decided to take that case? Are you requesting documents Are you evaluating them? What are you doing exactly?

Adam Deutsch:

My analysis or my partner's analysis in terms of, okay, we think this is a case, right? We have a good understanding of a lot of areas of medicine. We have a sort of quick take on like, yeah, this shouldn't happen or this sounds like something maybe went wrong.

But at the end of the day, we're not doctors. And at the end of the day, we can't pursue a case unless we have a doctor on board who's willing to say, yeah, they did X, Y, and Z wrong or they departed from the standard of care, which is the sort of lingo in our business.

So we get all the medical records. We sort of analyze those records to see where we think the issues may be. And then we retain experts in whatever field of medicine we're dealing with. And we send them the records and say, what do you think?

And we really lean on them a lot to sort of identify for us where the problems were.

Kyle McEntee:

So how do you go about finding these experts?

Adam Deutsch:

If I tell you that, then I'm going to have to kill you because that's the secret sauce to the business.

It's not easy as a plaintiff's lawyer to find experts, right? They talk about the blue wall of silence for the police. There's something similar, I would think, in medicine, right? Doctors are very hesitant to testify against other doctors. Doctors don't really love medical malpractice cases. I think sometimes they feel like karma is there, right? If I testify against this guy, then if I make a mistake.

There's also a lot of doctors out there who say, look, if the doctor departed from the standard of care, then the person was injured, then the person should be compensated for that. So we have built up relationships with people over the years.

Part of it, I think, has to do with the quality of cases that we take in terms of doctors that we work with, knowing that we're not taking anything that is sort of on the borderline or the gray area. We only take cases that really have clear departures from the standard of care. So I think that the experts that we work with are comfortable sort of recognizing that, and therefore, they're willing to work with us. But it goes from referrals to cold calling people. And we do that on a weekly basis.

Kyle McEntee:

So you said earlier, that 95% or 97% of cases that you bring either settle or go to verdict. What's going wrong in those 3% to 5% of cases?

Adam Deutsch:

I don't know if I would say that anything's going wrong with them per se. Very rarely do we lose a case on a motion before trial. Usually, that 2% or 3% of the cases that we really don't either settle or go to verdict, we will lose at trial.

And that's why you don't take cases to trial, right? Because the defendants have an expert who says the doctor did the right thing. We have an expert that says the doctor didn't do the right thing. And you're leaving it up to six strangers on a jury who know nothing about medicine to make that decision. And that's a hard burden for plaintiffs to meet when a lot of jurors, they like their doctors. They think doctors are trying to do the right thing.

They go into a case with an understanding that just because there's a bad outcome doesn't mean that a doctor necessarily did something wrong. So it's difficult. So sometimes you take cases to trial and you don't always win them. And any trial lawyer who says they win every case has never really tried a case.

Kyle McEntee:

Let's talk about those jurors, those people you're trying to persuade. What is the process that you go through to identify who should be on that jury? And what effort do you put in to decide who do you want to strike from the jury?

Adam Deutsch:

For me at least, I think jury selection is one of my favorite parts of the trial. I think it's obviously probably one of the most important parts of the trial also. But it's fun.

You're going into a room full of 50 New Yorkers and talking to them about their lives. And you hear incredible stories that you can't make up about what people have gone through, things in their life that they tell us about. So I really enjoy it. I love it.

The goal in jury selection, they always say, is you're not really picking the ones you love because you're never going to get those people. You're just making sure that you don't have anyone that you hate. You really are trying to identify the people that you think would be really negative for your case.

So it's starting with a general idea of what people's feelings are about the civil justice system. Do they believe in it? Do they think it works? And then moving from there to what are people's feelings of doctors? I tell people in almost every jury selection that, look, there's no claim in this case that the doctor intentionally tried to hurt my client. It's not about that. Not even about whether the doctor is a good doctor or a bad doctor. And oftentimes, jurors are really shocked. Like, well, you're telling me that this doctor doesn't have to be a bad doctor? Not about that. They might be a great doctor. They might be a nice person. You might like them a lot. You're probably going to hear from them at trial.

And you're going to hear that they have great credentials and that they've been practicing in the community for years. And they are really nice people. And I don't have to prove to you any of those things are not the case.

So I have a burden to prove that the day in question, days in question, that they didn't live up to the standard of care. So you kind of have to feel through what people's sense of those ideas are, whether they have good relationships with their doctors, what their expectations are of their doctors. And you kind of work through all those different ideas in jury selection to try to get a sense of people that, by the end of the day, are fair and impartial. And that's the goal of jury selection.

Kyle McEntee:

So your methodology obviously works to some extent, because 95%, 97% success rate is a very high success rate. Do you manage to talk to the jurors after the fact to see what resonated?

Adam Deutsch:

I talk to jurors in every case after a verdict comes in, whether it's in my favor or not in my favor. It's how we as trial lawyers learn how to do things. Are there things that I did that they liked? Are there things that I did that they didn't like? I'm 6'7", so I'm really tall and I'm loud. So I've had jurors say, you got to back up. You stand too close to us. It was very intimidating.

So you learn a lot from just kind of talking to them. And I continue to be amazed and sort of surprised. You think that there's one thing that was really the focus, and they are focused on something else. And I say this to jurors during closing arguments a lot or in opening statements a lot is that we, the lawyers, we live with these cases for two or three years. I've read the records a million times. I go home after a cross-examination, and I read the transcript five times. For the jurors, they're hearing things once or twice, and then they go home and they don't think about it. They're told by the judge, don't think about it when you go home. So for them, something that you think is really important, sometimes they latch onto something that you had no idea. You're like, wow, I never even thought that would have been an issue. And sometimes it is.

And my dad always told me that reading jurors is like reading tea leaves. It's impossible. I've had jurors that I would have bet my house that they were my best juror. They were on my side the whole time and they voted against me. And I've had jurors that didn't crack a smile at me or a joke I made the whole case, and they were my best juror. So you just never know.

Kyle McEntee:

If you're to the point of conducting a voir dire, you're already pretty far into litigation, right? You've got a trial date and you're working your way towards it. What about your preparations for settlement? How do you think about that when you're looking at that initial batch of documents and analyzing it and talking to those experts?

Adam Deutsch:

So at the beginning of the case, I think we always have an eye towards trial. And then if the case settles and you can sort of have that conversation, great. But you can't have a settlement conversation if you're not ready for trial.

So we don't ever prep anything with the eye towards settlement. Obviously, we'd love to settle every case. I think it's better for our clients. It's great for us. But we do that by prepping for trial. That's the way you get the biggest settlement number for your client. It's the way the defendants and the insurance companies have to have an idea that you're not afraid to try a case, because that's the only way that you can kind of get that maximum value that the client deserves.

Kyle McEntee:

How does that conversation go with the client? Because it's real easy to read a headline in the New York Times, New York Post, Wall Street Journal, $500 million verdict, or $5 billion verdict, or some obscene number, and they probably get in their head like, “yeah, that's going to be me.” How do you have that realistic conversation with them?

Adam Deutsch:

I have that conversation every day. And it's a tough conversation to have to explain to them that those numbers are not always real, that the people don't always walk away with those numbers, especially in New York, so not to get so caught up on them.

It's really client dependent. We have a lot of clients who are super trusting of us and say, look, you guys know best. I'll take your advice. If you tell me that this is a good number or not a good number, I will trust you 100%. And then we have some clients who are not as trusting and who are sort of constantly honest about what the number is and if it's enough or not enough or they want more.

I think part of our role is to try to get them to understand that those numbers are not necessarily real, the stuff that they see on TV, and kind of bring them back to the reality of the situation.

Kyle McEntee:

Is that a conversation you have to have before you sign them on as a client? Or is it a continuous conversation and you never know when it's going to creep up?

Adam Deutsch:

It's definitely something later on. Clients all the time, they ask us in that first conversation, what do you think my case is worth? And I will not answer that question at the beginning. I will say I have no idea.

And any lawyer that you have spoken to, a lot of times they're calling multiple lawyers, so you're kind of selling yourself at the same time as having a conversation with a client. I will say to them, look, I'm not telling you and anyone who tells you your case is worth zillions now is lying to you just so you sign on the line. There'll come a time when we have an idea of what that is and I'll tell you what it is.

At the end of the day, it's up to you. I give you my counsel in terms of what I think is a good number and whether I think you should take it in terms of the risk and benefit analysis of going to trial and the upsides are and what the risks are. But at the end of the day, it's always the client's choice in our business of whether they want to accept the settlement or not. But it's usually something that happens later on as the case sort of develops.

Kyle McEntee:

I think that's one of the challenges when you're working with plaintiffs, right? These are plaintiffs who had something go horribly wrong for them. So they're emotional and understandably so. They maybe have a lot of questions that they may never get answers to. And they've got big bills that are probably piling up. And to be able to have a conversation about risk management with them, they're probably not all that sophisticated most of the time.

Adam Deutsch:

Correct. It's a hard conversation to have because that emotion is there. And a lot of people call us and say, it's not about the money. It's not, you know, I just want justice. I just want this doctor to not do this to anyone else. And the first thing we have to do is explain to them that that's not happening. That's not what this is about. No matter what happens in this case, this doctor is not going to lose their license. The doctor is not going to lose their job.

And unfortunately, it is about money. And there is often a conversation, maybe not at the beginning, but usually when the settlement comes up, where you're sort of explaining to them that we're at the point where you have to take emotion out of it. And while it's hard to say, and I don't want to sound like cold to the client about doing this, but this is really a business decision at this point, calculated based upon risks and benefits and the amount of money they're offering and the upsides and the downsides of taking it.

And some clients are better at understanding that than others. Some have a very difficult time taking the emotion away from it. And some understand it clearly.

Kyle McEntee:

How'd you learn to have those conversations?

Adam Deutsch:

I'm not sure. I think it's just, it's, they get easier, I guess, over time, but just doing it a lot.

Kyle McEntee:

Are you good at it? How do you evaluate that?

Adam Deutsch:

I think honesty is the best policy with all of this. And that's something that we strive for. I know I strive for it because if you're honest with them and you tell them how it is, people like that and they understand it. Although it's not an easy conversation to have, especially when you're dealing with young kids or someone's parent who was killed in an accident.

Kyle McEntee:

So we've talked about the money. We've talked about the emotion. We haven't really talked about the theater of court. And you know, the theater of court doesn't just happen in a trial, right? There's motion practice and all of that. But let's talk a little bit about your experience in court in front of a judge. How do you prepare for a conversation with a judge when maybe you're feeling like things aren't trending in your direction?

Adam Deutsch:

I'm usually less concerned in my business with the judge than the jury. The judge is really never my issue for the most part. When I'm on trial, the judge is like the least important person in the room because the judge is not the one who's making this decision.

Yes, can the judge rule against me on legal issues and give me a hard time on legal issues? But thankfully in the medical malpractice world, there's not that many legal issues that come up. Medical malpractice is a very fact-based thing. So the most important people are the jury. Our job is, we're salesmen at the end of the day. We have to be able to sell our position to six strangers who know nothing about medicine or what's going on.

Kyle McEntee:

So when you're doing prep for, let's say your opening statement, how are you trying to figure out what's going to work in a particular case?

Adam Deutsch:

I think that a lot of it just comes with experience. What separates a good trial lawyer from someone who's not quite as good on trial is being able to sort of make this really complex medicine and turn it into a way that six people who have no medical knowledge can A, understand it and B, think to yourself like, how is this person going to say, yeah, that's not right? That's really the goal, is to frame it in a way where it's not as complicated as it sometimes is and turning it into a way where your average juror would come away with that sort of visceral feeling of like, yeah, this does not sound right.

And I'm really lucky. We were talking about my dad before. So my dad retired about maybe three, four years ago. And it was about five, six years ago that I started my own firm. So when my dad retired, he's kind of bored looking for stuff to do. There's only so much gardening and golf that he could play. So he has been really working with me on my cases. So I send him cases before we go to trial. He reads the files, he reads the methods, he reads the depositions, and we sit together and talk about it a lot in terms of how we think it best sells and presents to a jury.

And from my perspective, it's a huge advantage. He was one of the top defense medical malpractice lawyers for 40 or 50 years. So having him there from a perspective of what is the defense going to do?

What their thoughts are going to be really is a nice thing. And it's been awesome for our relationship as well, obviously.

Kyle McEntee:

Does having him in your back pocket scare the insurance companies into maybe settling a little sooner or for a little more?

Adam Deutsch:

I'd like to think so. The medical malpractice bar is a really sort of small bar. And so it's nice. And they know that he's in my back pocket, and I'm sure they take it into consideration somewhat.

Kyle McEntee:

Is that part of your sales pitch also to your clients or your would-be clients? Absolutely.

Adam Deutsch:

One-hundred percent. I definitely let them know that. And I think it's something they like to hear.

Kyle McEntee:

So we've talked a lot about the business components of risk management, why you do it, because you're trying to figure out, is this case worth it? Is it worth the investment of time and money out of your pocket? But being cautious in talking to clients, there's also professional responsibility reasons. Can you talk a little bit about professional ethics and how that plays into the conversations you're having in those initial consultations?

Adam Deutsch:

We try to be as open and honest with our clients as possible. We don't oversell, you have the greatest case in the world, or you don't have the greatest case. We make sure to explain to them the risks and benefits of whether there's a settlement offer on the table or not. I think that's where the ethics of it comes in the most.

And unfortunately, because of some of the ways medical malpractice is done in New York with the statutes in terms of the fees, the medical malpractice fees in New York are different than the regular personal injury fees. It's a sliding scale. So the more money we recover, the less percentage we get. Whereas in a regular personal injury case in New York, at least, it's a straight one third. In medical malpractice cases, the more we recover, the less percentage we get.

So there's always some inherent conflict there between our clients and us, especially when you get to those higher numbers. Every 90% of that money is going into the client's pocket and only 10% of mine. And that's why it's really up to the client to make the decision on what to do.

Because when we're getting up to those higher numbers, you're talking about another $200,000, $300,000, $400,000, $1 million more. That's the client's money, not our money. So for me, I'd say, hey, let's swing for the fences here. But the client needs to recognize that it's their money. It doesn't make a difference to me at that point. Maybe for me, it's another 40 grand, whereas for the client, it's another 400 grand.

So the ethics really become just making sure that you are fully explaining to the client ramifications of the decisions that they're making, letting them know what's being offered, how much is on the table, how much more you think you could get. And I think as long as you're honest with your clients, I think that you're in good shape.

Kyle McEntee:

So one of the benefits of the billable hour is that the client is only going to be willing to pay you so much money. They're not going to say, oh, I'm going to pay you 40 hours for you going down this rabbit hole because you find it really interesting. And so for you not being compensated by the hour, but by the outcome, that counterbalance isn't there. And the reason I point this out is that for someone who so thoroughly enjoys medical malpractice work, it seems like it might be really hard for you to step away and have some semblance of life balance. Do you struggle with that?

Adam Deutsch:

I think my wife would agree on that sometimes. One of the reasons I started my own firm was because of that, because it enables me to do that. And I got very lucky in that I started my firm in June of 2019, right before COVID. I moved my office from the city up to Westchester where I live. So at the time, I wasn't really thrilled about it. And then COVID came and suddenly it was awesome because I was five minutes from home and now nobody really cares where you are anymore. So it really has opened those doors to me.

But I also think that being a plaintiff's lawyer does actually facilitate that work-life balance. Because when I was a defense lawyer, one of the things that I hated about it was the billable hour. I felt like there would be times where I'd be sitting in my office, it'd be six-thirty or seven o'clock at night. And I'd look down at my billing sheet and I'd see that I only had five or six hours of billable time. And I would find myself doing reports to the carrier or doing this unnecessary work solely for the sake because I needed more billing. Not because it necessarily moved the case forward in any way, but our clients wanted these reports, we had to do them.

I found it very frustrating. Why am I here at seven o'clock at night writing some report because the client wants it when it's not helping the litigation at all? As a plaintiff's lawyer, because I don't bill by the hour, I only have to do the things that actually help move a case forward. And because of that, it frees up a little bit of time in terms of you're not wasting time doing unnecessary work. And when I'm not on trial, if I want to leave the office at four o'clock to go see my son's basketball game, I could do it because I don't need the billable hours.

I could do the project tomorrow morning, and it won't make a difference in the scheme of the two years of litigation that we have. So it's being a plaintiff's lawyer and not having to bill was the most freeing aspect of enjoying what I do.