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Kian Karimi Spotlight

"When I first saw my first rhinoplasty procedure, I was so intrigued by the complexity… all of the emotional and psychological things that went along with it. And I, at that point, realized that facial plastic surgery is the perfect harmony of science and art, and I...

Confessions of a Trial Lawyer: Why I Used to Love Suing Doctors and How I Came to Protect Them

by | Jul 18, 2020 | Doctor, Issue 112, Legal, News, Taxes | 0 comments

No one in my family had ever been an attorney, and as far as I knew, had never even flirted with the idea. But something in my DNA—maybe some form of genetic mutation—gave me traits that inexorably led me to become not just an attorney, but a trial attorney.

I didn’t feel it at the time, but looking back, I really do think it was inevitable. I was constantly arguing. Picking apart logic. I can remember passionate and reasoned debates in high school about Star Wars v. Star Trek. Which was better? Who would win between Vader and Spock? (I mean, does the Vulcan nerve pinch even hold a candle to the power of the Dark Side?) I had far more passion than this subject deserved, but then again, what else is a nerd in high school supposed to be passionate about?

I loved speaking in public and joined the speech and debate team in high school, where I thrived. I took speech classes in college. I still remember my surprise when I was selected by my class to win an award for a tongue-in-cheek speech I gave called “How to Give a Condescending Speech.”

During law school, I took every trial-related course I could: civil litigation clinic, federal civil rights clinic, mock trial, intellectual property trial, moot court, and trial team. We drilled evidentiary objections until we knew them backwards and forward. My trial team coach, Steve Beckett, would have us watch videos of ourselves during cross-examination and critique our technique. I represented real prisoners in federal court who had been mistreated while incarcerated.

Coach Beckett made my nerd world collide with my trial world when he enlisted Amy Stoch to be our “acting” coach. Amy played Bill S. Preston’s hot stepmom, Missy, in Bill & Ted’s Excellent Adventure. She left Bill’s dad and was married to Ted “Theodore” Logan’s dad in the sequel Bill & Ted’s Bogus Journey.[1]

I still remember the thrill when I was at a family law hearing, and after witnessing a self-represented litigant struggle to present her position in front of the judge, my civil litigation professor, George Bell, turned to me and invited me to walk up to the woman and volunteer to represent her, pro bono, during the hearing.[2]

The judge gave us a few minutes to consult, so I met privately with my new client to figure out what her goals were and what information she had. Then I went back in front of the judge on behalf of this woman, laid out the plan, and got it approved. In a matter of fifteen minutes, I had made a difference in the life of a stranger, who was profoundly grateful.

Learning the Power of Being a Lawyer

I experienced a galvanizing moment in law school when another student and I were involved in an evidentiary hearing at the local courthouse.[3] We represented a mother whose teenage daughter and ex-husband were teaming up to try to get a restraining order against her in what we considered merely an attempt to circumvent the family law judge’s custody order that gave primary custody to Mom.

We were nervous, not only because we were about to do something we had only ever practiced, but also because opposing counsel was a professor at our school. I vividly remember cross-examining the teenager in the judge’s chambers while the opposing-counsel professor, recognizing that his lying teenage client was the most vulnerable part of his case, objected frequently, trying to keep me from getting at the truth.[4]

When the presiding judge announced his decision—that the daughter would not be getting her restraining order and would have to return to live with her mother—we felt the exhilaration of triumph, made even sweeter because we had beaten a law professor. Plus, it wasn’t a hollow victory. It had made a difference. Even as students, we had done something for someone that they couldn’t do on their own and helped a mother whose ex-husband was undermining her attempts to raise her daughter.

That thought was actually a little scary. The narrative we had built our case around was that the daughter preferred living with Dad, where there were no rules, and Dad wanted his daughter to live with him so he wouldn’t have to pay child support. To achieve their ends, they spun a thinly veiled story about Mom being abusive and took their story to court.

I believed Mom when we interviewed her in preparation for the hearing. She said she had never and would never lay a hand on her daughter. After the cross-examinations of Dad and daughter, I was even more convinced that their story was contrived. But still, a small part of me worried that if my instincts were wrong, and Mom was actually abusive, then I was putting a vulnerable segment of our population—a child—into an abusive home.

I had more than one law professor joke that no lawyer ever represents the wrong side—that we all only take the side of the case with merit. And it’s easy to feel like that is true. Of the hundreds of cases I have been a part of, there were only a small handful where I eventually discovered that I was on the wrong side.[5] But then again, it is usually easy for our subconscious to create a false dichotomy: our client is good, and the opposing party is bad.

The truth is much less black and white. In reality, I have found that almost every case is messy, both sides have some part of the truth, and the “slam-dunk case” is a myth—it’s hanging out somewhere with leprechauns and unicorns.

Having worked both sides of the civil bar now, I have a perspective that has changed the way I view litigation.

Defending Those Who Have Been Wrongly Sued

For years I was strictly a defense attorney. I represented hotels, casinos, retail stores, small business owners, and individuals. My view of plaintiffs—those doing the suing—was narrow and harsh: they were sue-happy and opportunistic malingerers who were treating any remarkable (or in some cases, unremarkable) event with the potential to cause injury as a winning lottery ticket.

These beliefs were deep-seated. I saw myself as a crusader for justice. The longer I practiced, the more evidence I found supporting my position.

I was involved in a case where an insurance adjuster was the “injured” plaintiff. He was claiming multiple millions of dollars’ worth of damages from a fender bender. These high-dollar cases scare insurance companies and justify a greater defense expense. In this particular case, we had a sizeable budget to defend the case.

That budget afforded us the opportunity to travel across the country taking witness and doctor depositions, track down medical history that the plaintiff had failed to disclose, and otherwise turn over every stone and pull out every skeleton this guy had in his closet.

Turns out he literally had multiple skeletons in his closet. He had become famous in his neighborhood for the thousands of Halloween decorations he put up every year. In fact, that became part of his damage model. He was so injured he could no longer decorate for Halloween, which was a significant source of joy in his pre-injury life.

Among our discoveries was a medical record predating his car accident for every single post-accident injury he was claiming. Numbness in the fourth and fifth fingers of his right hand? He sought treatment for that from his local hospital 18 months before. Herniated disc at T4–T5? Referenced in employment records as a reason he had missed work. Frequent migraines? He had the same complaint at his local clinic three weeks before the accident.

At trial, that became a central exhibit: A pictorial correlation of every single supposed crash-caused injury with complaints of the exact same injury in records that predated the wreck.

The jury returned a verdict for the defense, and the judge awarded attorneys’ fees against the plaintiff to the tune of almost $200,000.

These types of cases felt like the norm. I used a hotel video of a plaintiff to invalidate an expert’s opinions and settle a case for about 10% of what the plaintiff’s attorneys thought it was worth. I used construction records in another case to get our defendant completely dismissed from the case without paying anything. In one trial where I represented a trucking company, all it took were some photographs and basic math to prove that the crash could not have happened the way the plaintiff said it did. By performing site visits, sending subpoenas, hiring private investigators, and taking depositions, I was able to defeat the plaintiffs’ claims time and time again.

In fact, it was because of all this success that I eventually started my own firm. Insurance companies kept sending us more and more cases. When I added up the numbers and saw how much money I was making for the firm compared to how much the firm was paying me, I realized the best way to really make good money as a lawyer was to own my own firm.

I originally thought about starting an insurance defense firm—that was what I was good at. But the thought of being beholden to insurance adjusters my whole career did not appeal to me. I knew I could succeed representing plaintiffs—I knew exactly what pitfalls to avoid (really, mostly just one: not taking on cases with faking, lying plaintiffs). But the thought of joining the dark side was also not appealing.

I had attended a social event and began a conversation with an old acquaintance who I knew represented plaintiffs. I told him I was starting my own business and shared with him the cognitive dissonance I was experiencing as I thought about representing plaintiffs after having been on the righteous side for so long. He smiled and told me that the plaintiffs’ attorneys are the ones wearing the white hats.

As trivial as this sounds, ultimately my decision came down to this: As a defense attorney, I would have to keep track of billable hours. As a plaintiff’s attorney, I wouldn’t even need billing software.

Representing Those Who Have Been Wrongfully Hurt

I took the plunge and started my own firm. I had exactly one client of my own and was fortunate enough to partner up with a good man who had started up a few months earlier and had some momentum going (and some paying clients) in his family law practice.

I was proud to be a business owner but embarrassed to be lumped in with the class of attorneys known as “ambulance chasers.” I would not tell people I was an injury attorney. I would tell people I represented victims. I wouldn’t tell them I did car crashes. I told them I did trials.

It took a long time of meeting with clients and seeing the other side for me to realize that most of the people coming through my door were genuine. They didn’t like the idea of suing anyone. They didn’t consider themselves someone who would ever need an attorney. But they didn’t know where else to turn.

In some cases, they had been injured but couldn’t get treatment. As soon as the doctor found out they were injured in a car crash, they would send them elsewhere, presumably because the doctor did not want to get involved in litigation or had a bad experience in the past being the subject of a deposition.

In other cases, the insurance company was denying liability or not even offering enough to pay for medical bills. The victim of the negligence was desperate. They weren’t looking for a handout but didn’t want to go into debt for someone else’s careless driving.

These were real people with real injuries whose lives were sometimes profoundly affected. As much as I derided as a defense attorney the claim of loss of enjoyment of life from the supposed inability to set up Halloween decorations, I realized as a plaintiff’s attorney that the issue wasn’t so much as to whether Halloween brought joy, but whether the injury was genuine.

The truth is, we are skeptical of people claiming injury. We always look for ulterior motives. And the jury does too. In front of a jury, the defense attorney starts with the advantage because the jury is on the defense’s side before the case even starts.

This realization made me work even harder as a plaintiff’s attorney. I delved deeper into the art of litigation and trial than I ever had before. I started doing focus groups with every case in litigation. I attended the trials of other attorneys and private trial dissections afterward. I flew all over the country to attend courses put on by the best trial attorneys in the nation. I would speak openly with jurors post-trial to try to discover what I did that resonated and what I could improve.

One key lesson I learned was that to win the jury over, you have to focus on the defendant, not the plaintiff.

I had one client who came to see me just a few months after I started my firm. That was back when we were taking any case that came in our door where we felt the plaintiff was honest and actually hurt. He was retired, very obese, and spent every morning sitting at a video poker machine smoking and gambling away what little income he had. One day while he was in the middle of his morning routine, the chair he was sitting on collapsed. He fell backward and hit his head on a bookcase behind him.

When he told me his story, I was not as sympathetic as I should have been. It sounded like a bad case. I could see the defense in a closing argument trying to tell the jury what the case was really about without coming out and calling the plaintiff fat.

But I took the case. I took it because I was taking every case. Plus, I liked the guy, and he was genuinely hurt. Then I got to work.

We looked into the chairs and found that they were using cheap office chairs that were rated for 200 pounds. Using data collected by the government, we discovered that a significant portion of the population weighs more than 200 pounds. We also gathered several records that told the real story behind the injury, the story we knew would resonate with the jury. I actually purchased a gaming chair from an old casino so I could show the jury what this kind of chair should look like.

Turns out our client was not the first person to have a chair collapse underneath him at the slot machine parlor. He was not the second, nor the third.

He was the forty-second.

I discovered that the slot-machine parlor recognized the problem and, in a series of internal memos, made the decision to purchase more robust chairs—chairs that would be rated for up to 400 pounds. But instead of replacing all the old chairs, they stuck the new chairs in a warehouse and would replace them with the new stronger ones as the old ones broke. That would be like auto manufacturers issuing recalls that applied only to airbags that had already exploded shrapnel into your body.

I took a series of depositions of the executives and managers of the slot-machine parlor to learn that they knew of the problem, did the math, and simply didn’t care.

I didn’t have to take that case to a jury. In fact, I set up a mediation where the decision-maker for the slot-machine parlor was required to attend in person with the insurance adjuster and defense attorney. Then I showed them a presentation I had prepared where all I did was show the internal memos, clips from video depositions, and clips from surreptitious video their private investigator had taken of my client (showing his injury was real). I let their own evidence speak for itself—in fact, through the entire presentation, I didn’t say a word.

They got the message. And they paid millions so the jury would never see it.

Amid all the successes that came, there was one particular nut I was finding particularly difficult to crack: medical malpractice cases.

Finding Satisfaction from Suing Doctors

It felt good to expose corporate greed and carelessness, yes. But nothing was as satisfying as taking the deposition of smug, arrogant doctors who felt they could do no wrong but who had to personally confront their careless indifference while being videotaped and responding to questions under oath. It was this same careless indifference that was killing and permanently injuring people.

When I learned of a 2016 study by Johns Hopkins University, I used that as my anthem. Johns Hopkins performed an analysis that led them to conclude that 10 percent of all deaths in the U.S.—about 250,000 every year—were caused by preventable medical error.[6] That would make doctors the third leading cause of death behind heart disease and cancer. But because the Centers for Disease Control did not have a classification for doctor error as a cause of death, Johns Hopkins wrote an open letter inviting them to create one.

I was on a personal crusade to change the healthcare industry and encourage doctors—one by one if necessary–to be more careful. For some reason I could not explain, though, I wasn’t experiencing the same kind of success I was on my other cases.

I understood that medical malpractice operates under its own set of rules—rules that made it more difficult to be profitable (which is why most plaintiffs’ attorneys don’t do medical malpractice). Although the laws and rules vary state to state, medical malpractice is universally more difficult.

For one, there are higher barriers of entry. In some states, you have to go through a pre-litigation medical panel and get approval to proceed. In others, you have to hire an expert and attach an affidavit-of-merit—sworn statement in that expert’s opinion that there was medical negligence—to the complaint.

The statute of limitations for medical malpractice are usually shorter than for ordinary negligence—sometimes as short as a year from when the injury occurred.

There are caps on certain types of recovery, limits on what an attorney can charge, and different rules about the presentation of evidence at trial.

All of this combined made the practice of medical malpractice full of a lot more hoops, but none of them could explain why, after jumping through all the hoops, my cases were not settling. I found that doctors, no matter the circumstances, just did not want to pay. They would rather take a chance of going to trial than settle a case. Because, at least in my home state of Nevada, unlike with traditional negligence cases, a doctor has the statutory authority to veto the insurance company’s desire to settle a case. Even if the insurance company was eager to pay, they could not get the doctor to sign off.

There are similar rules in other states—giving the doctor ultimate settlement authority even though it’s the insurance company’s money at stake.

As a result, at least in my experience, far more medical malpractice cases go to trial than other cases. Although most trial verdicts resolve in the doctor’s favor—about 80 percent[7]—those wins come at a high cost, including an average of about three and a half years spent in litigation.[8] A loss for a doctor at trial is often devastating, in part because doctors are perceived to be wealthy, and in part because juries feel angry and betrayed when doctors—protectors—hurt people. A verdict against a doctor can be in the tens of millions.

I personally know three medical malpractice attorneys who recently won big at trial—$73.21 million in Santa Fe, New Mexico; $46.5 million in rural Arkansas; and $48.63 million here in Las Vegas, Nevada. Without trials, there are no verdicts. And the more cases that go to trial, the more verdicts there are. The more verdicts there are, the more runaway juries.

This never made sense to me. Why would a doctor risk so much if the insurance company is willing to settle?

I could not make sense of this until I became aware of one huge factor influencing a doctor’s decision whether to settle: the National Practitioner’s Databank.

The NPDB and the Law of Unintended Consequences

In response to what was perceived as a broad problem in health care—bad-actor doctors moving across state borders and continuing their rampage of destruction unchecked —the United States Department of Health and Human Services established a national database of “bad” doctors.[9]

This list can have a profound impact on a doctor’s career. It can negatively affect credentialing and privileges at a hospital. Part of the hospital’s grade is based on how many of its doctors have their names on the list. Healthcare insurers could choose not to provide coverage to a reported doctor. Malpractice insurance premiums could go up, or insurers could refuse coverage altogether. It could be harder to find employment as a doctor.

Those who run the NPDB, for their part, defend the list, claiming it was designed “to improve healthcare quality, protect the public, and reduce healthcare fraud and abuse in the U.S.” and describe it as “a workforce tool that prevents practitioners from moving state to state without disclosure or discovery of previous damaging performance.”[10]

The problem is not the concept. No one can disagree that we want to be aware of and track doctors who have no business treating people. But the devil is in the details.

For one, there is not necessarily any correlation between a doctor’s skill, or culpability in a certain situation, and whether their name goes on the list. Among the many triggers that can get a doctor’s name on the list is having a payment made on the doctor’s behalf in response to a claim from a patient—malpractice settlements paid by an insurer, for example.

Legally, a doctor can be held accountable not just for their own actions, but also for the actions of others. This is a legal principle known as respondeat superior, or vicarious liability. In other words, the law says, “Doc, I know you didn’t do anything wrong, but you are still legally responsible for the actions of those working underneath you.” There is no culpability; just responsibility.

When a child hits a baseball through the neighbor’s window, the child’s parent is legally responsible for replacing the window. We don’t blame the parent, but because of the relationship between the parent and the child, who is at fault, the parent is responsible.

The NPDB doesn’t make that distinction, though. Because all third-party payments are reportable, a doctor may be reported even though they never did anything wrong. They haven’t been bad, but now they’re on the naughty list.

The fact is, cases are settled for any of a number of reasons—including just wanting to be done with the litigation process, which is often painful and is always unpleasant. By equating “settlement” with “bad doctor,” the NPDB has effectively criminalized a doctor’s business decisions.

Another problem with the list is the lack of due process. If you were being prosecuted for a crime, you would have all sorts of protections: You would have to be made aware of the charges being brought against you; you would have a right to review all the evidence against you (and that support your defense); you would have the opportunity to confront the witnesses against you,; you would have a right to a jury; you would have a right to appeal, or to seal the record.

The NPDB process lacks these protections. In fact, I have spoken to doctors who are not even sure if they are on the list and others who discovered long after the fact that their name is on it. Once your name is on the list, it’s on there forever. There is no appealing or sealing it. It’s like the sex offender registry, but for healers.

When I learned this, a doctor’s refusal to settle started to make sense. I had some doctors who would pay out of their own money and refuse to let the insurance company pay on their behalf (that’s an exception to the reporting requirement). Those who did settle would not do so until right before trial—in one case, the night before.

What I came to realize was that it wasn’t the doctors that were the problem. It was the system. It was broken. It did not allow for a fair fight. Once a patient brings a claim against a doctor, they’re both going to lose: The doctor and patient both are stuck in litigation that won’t settle. Informal negotiations won’t work. Settlement conferences won’t work. Mediations won’t work. Because all of them have the same downside for the doctors: a permanent black mark on their reputation. The only way either of them is going to get the minimum they need—for the doctor, it’s not getting reported, and for the patient, it’s getting even a small amount—is to go to trial.

The NPDB has turned litigation into a zero-sum game.

Becoming a New Kind of Crusader

I fought the good fight for years. But if you’ll allow me to be a little vulnerable—it weighed on me. I saw a lot of success, yes, but nothing came easy. Every success was hard-won. And for every success, there were ten more obstacles to be overcome. I was fighting every day, not just against the opposing party, which I bargained for by becoming a litigator, but also against the system. The system that was designed to promote justice was not able to do so.

My wife would be the first to tell you—without holding back—that my job was coming at a large cost—Physically, emotionally, and mentally, I was exhausted.

After some soul searching, I sold my trial practice. I started a new firm, one dedicated to constructive protections. I’m not defending doctors. I’m not suing them. But I am giving them the tools to make it a fair fight. And not just against patients. Doctors have several areas of vulnerability: employees and partners, for example.

Like anything else promulgated by the government, the rules behind NPDB reporting are complex and not easy to navigate. But written in those rules, for those willing to put in the work, are several exceptions to the reporting requirements.

Those doctors who are willing to be proactive, instead of waiting for a claim to be brought against them and reacting to it, can write themselves out of many of the NPDB reporting requirements. They can put themselves in a situation where, if a patient perceives that they are harmed, the doctor can significantly reduce the chance of being sued (via a well-drafted mandatory pre-litigation mediation clause). If sued, they can give themselves the option of settling the case without their name getting reported by setting themselves up as a group practice or clinical practice group and participating in an annual chart-review program.

Doctors pay for medical malpractice insurance, which indemnifies the doctor against harm done to a patient attributable to the doctor. But then during a lawsuit, doctors are faced with an impossible decision: Down road A is trial. You have an 80-percent chance of winning after three years of high stress and a 20-percnt chance of losing, having your name reported to the NPDB, and maybe having to come out of pocket for any verdict amount that exceeds the malpractice coverage. Down road B is settlement. If you settle, you have a 100-percent chance of being done with the lawsuit, but your name will be reported to the NPDB, where it will affect you for the rest of your life.

If doctors plan ahead, though, they can have their cake and eat it too. They can choose option C: Your malpractice insurance has one job—to make payments on your behalf. Let them do it. The case will be over, and your name will never be reported to the NPDB. You can get back to your practice and put this behind you.

Conclusion

As a litigator, I felt like I had spent my entire life preparing to fight the good fight in court. I saw every speech competition, grammar lesson, and mock trial as preparation for my ultimate calling as a trial advocate. But now that I have put that behind me and have a broader perspective, I see my years as a trial attorney as another stepping-stone to a greater calling, one where I am not working against people but with them. Collaborating. One where a success for the doctor does not equate to a loss for the patient. All parties win. And that feels good.


[1] Amy Stoch was working on her own advanced degree at the time—a PhD in Theatre History—and as part of her coursework had agreed to help the trial team learn how to control our body language, use the courtroom as our own stage, and ultimately, come across as confident and genuine to the judge and jury.

[2] The rules of ethics prevent an attorney from approaching a stranger and offering to represent them, but volunteering to represent someone already involved in litigation, for free, is not just allowed, but encouraged.

[3] An evidentiary hearing is like a mini-trial in front of a judge, usually on a limited issue.

[4] Teenagers are still minors, so they are protected witnesses. The examination was done in the judge’s chambers, instead of the courtroom, to keep the examination private.

[5] I say “eventually” because it doesn’t ever seem to happen during the honeymoon phase of the attorney-client relationship. It scares me to think so, but there are undoubtedly some cases where I was on the wrong side and never realized it.

[6] Vanessa McCains, “Johns Hopkins Study Suggests Medical Errors Are Third-Leading Cause of Death in U.S.,” Johns Hopkins University, https://hub.jhu.edu/2016/05/03/medical-errors-third-leading-cause-of-death/.

[7] Jena AB, Chandra A, Lakdawalla D, Seabury S. “Outcomes of Medical Malpractice Litigation Against US Physicians,” Arch Intern Med. 2012;172(11):892–894.

[8] Id.

[9] The data bank is not limited to just doctors. It applies to almost any licensed professional in the medical field, including nurses.

[10] U.S. Department of Health and Human Services, “National Practitioner Data Bank: About Us,” https://www.npdb.hrsa.gov/topNavigation/aboutUs.jsp.

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