EP01: How To Overcome Delay In Client’s Treatment

Episode Notes

Transcript

Christine Byers:

Welcome to the first episode of the Case Doctors. I’m your host, Christine Byers of Simon Law, and I’m joined by the case doctors, John Simon and Alvin Wolff. Now, between them, they have more than 80 years of experience as plaintiff’s attorney, so there really isn’t a scenario they haven’t already encountered on a case and figured out how to handle it. John, how many years

John G. Simon:

Or not to handle it

Christine Byers:

Or how not to handle it? Absolutely. How many years do you have on,

John G. Simon:

I think 39. This is my 40th year. Maybe this is my 46th year.

Christine Byers:

With all that experience now, they’re offering you the chance to tell them about the various problems or issues that are coming up in your cases and hear how they would handle it. But first, let’s turn to some of the civil cases, making headlines and hear what the doctors, the case doctors have to say about them. Alvin, I know AI has certainly been a hot topic in the legal industry, and here are some cases that talk about that very issue. First, in Wyoming, a federal judge overseeing a personal injury lawsuit against Walmart sanctioned plaintiff’s attorneys after they filed pretrial motions containing case law hallucinated by ai. And then in Texas, a lawyer could face $15,000 in personal sanctions and other discipline for filing three separate briefs using generative AI that included fake citations in an Indiana ERISA case. Alvin, what are your thoughts?

Alvin Wolff:

I use AI all the time. I love it. But the one takeaway from AI is you have to check your work. I mean, AI can be a great starting point, but if you don’t look at what they tell you, you could be really wrong because AI is not always right.

John G. Simon:

Well, and the flip side, or another way to look at it is you can always find a case on point if you can fabricate it, right? I don’t think that’s the first time that’s happened. I’ve heard of other cases in the last 12 months or so where the same thing has happened and it was very, very well publicized. And I think especially if somebody does it a second time or a third time, it starts to question the integrity of the attorney involved. I think if it happens more than once,

Alvin Wolff:

Well, I think it just shows laziness. I mean, here’s my answer, let’s just use it. Let’s not check the work. And it’s very simple. You can look up any site on the internet and it’ll take you right to, and if you think you got a personal injury case and they give you a bankruptcy case, you’re not going down the right road. You know what? You could get the AI to check the

John G. Simon:

Ai.

Alvin Wolff:

Never thought about that.

Christine Byers:

Now there’s an idea,

Alvin Wolff:

At least check the sites to see if the cases actually exist. I mean, there’s nothing wrong with ai. I mean, I’ve got a program right now that lets me put in depositions and I can ask questions like, what do the experts agree on? What did the experts disagree on? Where are the experts being evasive to? My questions? Were the experts being argumentative? And it gives me a pretty good reference point that I can crosscheck the depositions. And that’s more right than asking the internet to go to wherever the legal body of law and come up with cases that it may make up.

John G. Simon:

I use it maybe not to the extent that you do. Some of the younger lawyers here use it a lot more, but when I use it, it’s more issue identifying issues. For instance, writing a brief, not to write me a brief, but give me an outline with the arguments. What arguments are we likely to see from the defendant’s brief in the case that we can anticipate that and respond? And it does a really good job. I mean, my opinion, it’s a good job. I do it for depositions where if I’m going to take an expert’s deposition, I’ll do my outline and then I’ll run it through AI and ask her what am I missing? What other sub-issues are there? And almost every time it’s way, way more comprehensive what I get from AI than what I initially had.

Alvin Wolff:

And I do it backwards. I’ll start off with, I have to take a deposition for this, this and that, and it’ll give me maybe 25 questions that will let me come up with another five questions for each question it’s given me.

John G. Simon:

I know there’s some of ’em. I heard of a program, I haven’t used it where it’s live during the deposition and it will actually feed you questions, follow up questions based upon the answers that you’re getting from the witness. Bob Langdon said that they’ve got one that can actually assess whether or not somebody’s being truthful in their answer. And I thought, wow, I think most lawyers, good lawyers I know are way better at that than can’t imagine an AI program being able to. Of course, his answer was, he knows when the defense experts are not telling the truth. He said when their lips are moving, that was Bob, not me.

Christine Byers:

Alright, gentlemen. Well, now it’s time to turn to our email inbox for the cases our viewers have sent in for the case doctors to diagnose. Now, just so everyone knows, we’re not going to reveal where these cases came from. We’re not going to name any names or firms to protect the confidentiality of the cases. Instead, the case doctors are going to just focus on the issue in each of them. First up, an issue involving a personal injury case and plaintiff in this case has a meth addiction. He is feeling suicidal, goes to the defendant hospital and indicates as much an inadequate evaluation is done and a psychiatrist bases the decision to discharge the patient several hours later without any personal evaluation. And on a phone call with an ER doctor who says, after coming down from his high, the plaintiff said he is no longer suicidal. I’m sure you can see where this is going. The next day the plaintiff commits suicide by overdosing and leaves behind a wife and child. So gentlemen, in this case, what would be your approach? Alvin?

Alvin Wolff:

I have a similar case right now with a stroke where a patient came in and he had stroke symptoms. The wife wanted the emergency room doctor to call the decedents treating neurologist, and the treating neurologist said, don’t give this clot busting drug TPA to the patient until the stroke doctor evaluates him. The stroke doctor instead had a conversation with the emergency room doctor and said, based on what you’ve told me, give him the TPA. They gave him the TPA, he bled. The guy had what’s called a conversion reaction, his brain bled and he died about three months later. So I think in a situation like that, if a doctor is going to make a diagnosis, it’s really important for him to see the patient. And I would look towards the psychiatrist for relying on an emergency room doctor who may have no psychiatric training at all, and he may not be looking for the right things.

Christine Byers:

John, what would be the part of this case you would attack?

John G. Simon:

I’ve handled a couple, maybe a few suicide cases, and I think those are, some of the medical malpractice cases are tough to begin with. I think suicide cases are at another level of difficulty, and it just, the feedback that I’ve gotten, the sense from focus groups from juries is if somebody wants to kill themselves, it’s inevitable they’re going to kill themselves if they don’t kill themselves. If you prevented it this time, it is going to happen the next time. And what I try to focus on in those cases is to show the treatment available and how effective the treatment is. In other words, the person had they, it’s not just should they have been discharged, but I think you need to think a little bit past that and start thinking about evidence to show that had they been seen and had the physician intervened appropriately, there is treatment available and the treatment is very effective, especially if the person hasn’t gone through the proper treatment previously. But they’re tougher, in my experience, they’re tougher than somebody with a physical condition. And it’s bias too. I mean, there are bias issues involved with people who commit suicide.

Alvin Wolff:

Well, I tried a suicide case once and my jury was out for 10 minutes before they came back with a verdict.

John G. Simon:

What was it about what happened?

Alvin Wolff:

A lady got a Medicare claim form in the mail. She had breast cancer. They did a CAT scan of her head to see if it metastasized to her brain, and the claim form said brain cancer rather than rule out brain cancer. She got the form in the mail. So it

John G. Simon:

Was wrong.

Alvin Wolff:

It was wrong.

John G. Simon:

Whoa.

Alvin Wolff:

She got the form in the mail and she hung herself the next day. She never said anything to anybody. Wow. So we had to prove that this made her insane and unable to appreciate the ramifications of her actions. Her husband was an 85-year-old pig farmer and he went out to the barn to feed the pigs and found his wife hanging.

John G. Simon:

Holy cow. So that she got a document from the hospital, from the doctor? From the doctor, and it said, brain cancer instead of rule out brain

Alvin Wolff:

Cancer, it said Brain tumor. Brain tumor. Right. Wow. And she didn’t call anybody. She didn’t say anybody say anything to anybody. She just went out and hung herself the next day. Any prior issues, mental health issues with her husband said she was the best damn pig farmer he’d ever seen. Wow.

Christine Byers:

What a tragedy. Turning to our next email here, I have a client who was rear-end and is now claiming significant neck and back pain. The issue is that their medical records from the ER visit right after the crash state, they had no acute distress and denied having pain or injury. However, they started treating for pain about two weeks later. The defense is already hinting that this delay undermines causation. The client insists they felt pain right away, but didn’t think it was bad enough to mention at the hospital. Have you dealt with a situation like this before? Any thoughts on how to explain the delay without hurting the case?

John G. Simon:

How bad was the impact? That’s where I would start. Everybody knows that things can get worse over time, especially if it’s something strained or torn, but I would look at the impact. And the other thing too, when you’re out at the scene, a lot of times you’re under shock. Your adrenaline’s kind of flowing, but in one form or another, I’ve had that dozens of times where defense is attacking that. They’re trying to say, your client isn’t hurt as bad as they are or that they say they are.

Alvin Wolff:

Right. And we’ve had cases where with a five mile an hour impact, we’ve had people tell us that is the same force as dropping a bowling ball on the floor from five feet. So it can be significant. And what John says is right when you’re at the scene, your adrenaline’s going, and a lot of times people don’t feel bad until a day or two later. And then people will say, well, I think it’s going to get better, and I wait to go to the doctor and they wait to go to the doctor, and then the defendant has to come up with some excuse to try to get the juries to not give the injured person any money.

John G. Simon:

I think another big thing too is who is your client? Are they believable? Are they credible? Do they have, what does their past tell you about who they are? I’ll give you an example. Years ago I tried a case for a carpenter and he was six months prior to his retirement and he did retire. And one of the issues in the case, he had twisted his back, blew out a disc. The defense in the case was trying to say he was in horrible pain. And again, he wasn’t making a wage loss claim. He was going to retire in six months anyway, but the pain was just incredible. It just wouldn’t go away. And that was the issue, how painful this was, was he overstating it? And the defense didn’t know this, but when I put him on the stand, and I had asked him this in our meetings before trial, he told me during our conversations, he’s a carpenter and he said he never missed a day of work in 40 years.

He never missed a day of work 40 years. And he had a tip of his finger was missing one of his fingers. And I said, what the hell happened there? And he said, A saw at work got cut off. And I said, and you’re telling me that? And this was when I was meeting with him, you’re telling me that you didn’t miss a day? He goes, well, I went to the hospital, they bandaged it up and I went back to work. They sewed it up and bandaged it. And so I brought that out at trial, just the fact that he hadn’t missed a day of work in

Christine Byers:

40 years. Now they’re saying something,

John G. Simon:

But he was a very good guy, believable, likable. We didn’t have any problem. The jury, we got a nice result in the case.

Alvin Wolff:

I think juries like people that are trying hard and trying to downplay their problems, you want to have them look like a hero instead of as a victim, poor, poor, pitiful me does not sell.

John G. Simon:

That is a great point. You’re way better off going in minimizing your own damages. And another case comes to mind where I had somebody who was really hurt, bad and couldn’t work, but he didn’t need a wheelchair. And about six months before trial, he’s in a wheelchair. They did a supplemental deposition. I didn’t know what he was in a wheelchair. No doctor had prescribed a wheelchair for him. And I thought it was just really a tough issue for us because he might’ve thought he, I’m sure he thought he needed the wheelchair. It was a back issue, but no doctor had prescribed it. And they beat him up in the depot about that. And I started thinking, what do we do at trial? It was a really good case, and that was the only issue that the defense had, and I was kind of mean about it at trial, I brought him in, had my paralegal sit him down and get rid of the wheelchair, and I called him up to the stand to testify without his wheelchair, didn’t tell him.

I just said, come up and plaintiff would like to take the stand. And he’s looking at me. And then everybody was waiting. The jury was waiting and he struggled. You wouldn’t believe it. I mean, he was going real slow and holding his back. And I just stood there not helping him, not smiling, and was like, let’s, let’s go get on the stand. And finally the judge said, stop. Bring him a chair. And sat him down in front of the jury so he didn’t have to go any further on the stand. And anyway, it worked out well. We got a good result in the case. And afterwards the couple of the jurors looked at me and just kind of frowned. I wasn’t a compassionate attorney and walked past me a dirty look and hugged my client, but I thought, yeah, I was just trying to take it away from the defense.

Alvin Wolff:

I had a situation two days ago where my client was asked, do you have any assistance devices? She walks in without any, she says, well, sometimes I use a cane. So I called her up last night and said, I want you to take a picture of the tip of the cane and send it to me so I can see what it looks like.

John G. Simon:

Yes.

Alvin Wolff:

And the cane did have wear on it. So one thing you have to be careful of, if your client does have assistance devices that they look like they’ve been used.

Christine Byers:

Interesting.

John G. Simon:

Otherwise, it’s a great point. Looks they’re faking. In that same case with the wheelchair in opening, because I knew the defense was going to jump on this, I stood up and said, he’s disabled, he can’t work. All the doctors agree, but he doesn’t need a wheelchair, is what I told them in. It was like, and they’re like, what are you talking? He doesn’t need a wheelchair. And even in my office, I said, if there was a fire in this building and you didn’t have a wheelchair, you could get out of here. Right? And he says, but it was the only thing I thought, why are we giving them that? Why are we giving them that? He took

Christine Byers:

It away

John G. Simon:

And that was it. It was just taken away. And the defense lawyer just, I said that in opening and they just quit writing. They put their defenses, the only thing they had to say in the case.

Christine Byers:

Okay, gentlemen, that will do it for our inaugural episode. If you have a case that you would like the case doctors to dissect, send us an email at [email protected]. Once again, we will be keeping all names and cases confidential. Thanks for joining us and we’ll see you next time on the case. Doctors.

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