Sleuthing Out New Ways of Presenting Cases

Having worked in claims for 24 years gives Steve Davies a good perspective on things. In his career he’s investigated medical professional liability cases in a variety of fields. However, for the past ten years as a senior claims representative at Physicians Insurance, he has handled more than 700 cases involving physicians. Steve’s ability to look at each case differently helps him come up with ways for attorneys and juries to see them differently, too.

“I was talking to a defense attorney last week about other people who do what we do,” says Davies. “The attorney said, ‘Some don’t apply the thinking that you do at Physicians Insurance. They don’t all think strategically.’” This resonates with Steve, because rather than pushing paper and taking a back seat, or having a laissez-faire role, he wants to be front and center. He shares his evaluations with the defense attorneys, gives them ideas about what the physician and company want done, and actively participates in the defense of his cases.

He highlights a recent case that resulted in a verdict for the defending physician and the innovative technique he helped to create that will impact cases for years to come. It’s a case involving a radiologist who reviewed X-rays of a 12-year-old boy’s knee and hip after he complained of knee pain. The films appeared normal. Two and a half years later, the physician was sued for a hip injury stemming from the knee pain.

The tricky thing about hindsight is that it works against radiologists when there is a lawsuit. When experts review cases, both for the plaintiff and defendant, they know there must be a problem that was missed. Having that knowledge, experts can’t just eliminate it from their evaluation even if they try to review the study as if it were from a prospective basis.

So, when you know that a plaintiff attorney who sent you an X-ray wants you to review it because he’s thinking of filing a lawsuit, “you just can’t go and look at that film like it’s the day that you initially read it,” says Davies. “When experts look at these cases, they’ve got that hindsight bias, even if they don’t know the outcome.” Drawing on his investigative experience, Davies wanted to come up with a way to eliminate the hindsight bias in this case. His approach created the winning difference. “I suggested to our attorney that instead of sending one record—one or two X-rays of one patient—let’s put together multiple studies that the experts could look at and they won’t know which case it is.” The attorney and our insured took that idea to the next level. The result was a total of 19 studies from 19 different patients. Recalls Davies, “And then our attorney met with our experts and, by golly, that worked—you’re really then putting yourself in the day in the life of a radiologist. You don’t know which one it is. There’re going to be abnormal studies. There’re going to be normal studies.There’re going to be close calls. There’re going to be obvious calls. And there’s going to be this one.”

Davies feels he can bring ideas like this to the table because the full weight of the company and its expertise are behind him. This also means everyone involved from company management, to the defense attorney, to Steve are familiar with the details of each case. “You get to know your policyholders better because you’re meeting them individually and you’re communicating with them throughout the case,” he says. “You meet them at the initial meeting of the claim stage. You meet them again if it turns into a lawsuit. Then you meet them at their deposition. And all this personal involvement builds confidence and rapport when they can sit across and know that they’ve got somebody that knows what they’re doing. It instills the confidence in them.”

Davies adds that the plaintiff’s deposition provides him with firsthand perspective as well. “You’re seeing how well they do. You’re seeing them tell their story. You’re seeing if it’s believable and credible.” Comparatively, some companies just wait for the deposition reports from the attorneys. “But it’s different when you’ve attended that deposition in person and seen it firsthand. So you can really walk away, I think, with a better understanding, a better analysis of the case.”

In the radiology case, when the defense attorney sat down with the medical expert to review the 19 studies, and the expert didn’t see any abnormality in the real film, that’s when Davies and his team confidently recommended trial. Focus groups were conducted and confirmed the evaluation that there was a strong case. And that’s where even more creativity was used to battle this hindsight bias. “We knew that the plaintiffs had experts who would come in and offer criticisms during the trial. But we felt the real focus was this hindsight bias. So, in the opening statements the attorney explained this concept and put an image up on the screen of hundreds of coffee beans.  And then in one of the beans in one little spot there’s a face.” When jurors first looked at the image they didn’t see it. “Then our attorney pointed it out and said, ‘See that right there?’ And then throughout the trial he put it back up there. And it’s the hindsight bias. Once you know that there’s something that’s there, your eye goes right to it and that’s all you see.”