1. MEDICAL MALPRACTICE: CASE SELECTION AND MANAGEMENT
(DEFENSE)
Presented to the Iowa Academy of Trial Lawyers
February 25, 2016
Robert Waterman, Jr.
LANE & WATERMAN LLP
220 N Main Street, Suite 600
Davenport, IA 52801
563-333-6618
bwaterman@L-WLaw.com
I. Introduction
From the perspective of the defense, most medical malpractice clients are insured
and therefore these cases are generally assigned to defense counsel by an insurer or third-
party administrator, rather than “selected” by the defense attorney. Thus, the “selection”
process is ordinarily limited to a determination of whether the defense attorney has a
conflict in representing one or more of the defendants. This presentation will focus on the
applicable rules for addressing potential conflicts, as well as recent decisions and practice
pointers for managing the initial phase of defending a medical malpractice case.
II. Relationship among Insurer, Insured, and Defense Counsel
a. Source and nature of attorney's obligation: Triparte relationship
 The insured defendant is the lawyer's client, even though the insurer pays
the fee.
 The obligation to the defendant arises out of the attorney-client
relationship, rather than a contract of insurance.
III. Conflicts and The Iowa Rules of Professional Conduct:
Rule 32:1.7: CONFLICT OF INTEREST: CURRENT CLIENTS
(a) Except as provided in paragraph (b), a lawyer shall not represent a client if the
representation involves a concurrent conflict of interest. A concurrent conflict
of interest exists if:
(1) the representation of one client will be directly adverse to another client;
or

2. (2) there is a significant risk that the representation of one or more clients will
be materially limited by the lawyer's responsibilities to another client, a
former client, or a third person or by a personal interest of the lawyer.
(b) Notwithstanding the existence of a concurrent conflict of interest under
paragraph (a), a lawyer may represent a client if:
(1) the lawyer reasonably believes that the lawyer will be able to provide
competent and diligent representation to each affected client;
(2) the representation is not prohibited by law;
(3) the representation does not involve the assertion of a claim by one client
against another client represented by the lawyer in the same litigation or
other proceeding before a tribunal; and
(4) each affected client gives informed consent, confirmed in writing.
Pertinent Comments to Rule 32:1.7
1. Concurrent conflicts of interest can arise from the lawyer's responsibilities to
another client, a former client or a third person, or from the lawyer's own
interests.
2. Resolution of a conflict of interest problem under this rule requires the lawyer
to: 1) clearly identify the client or clients; 2) determine whether a conflict of
interest exists; c) decide whether the representation may be undertaken despite
the existence of a conflict, i.e., whether the conflict is consentable; and 3) if
so, consult with the clients affected under paragraph (a) and obtain their
informed consent, confirmed in writing.
3. A conflict of interest may exist before representation is undertaken, in which
event the representation must be declined, unless the lawyer obtains the
informed consent of each client under the conditions of paragraph (b).
4. If a conflict arises after representation has been undertaken, the lawyer
ordinarily must withdraw from the representation, unless the lawyer has
obtained the informed consent of the client under the conditions of paragraph
(b). . . . Where more than one client is involved, whether the lawyer may
continue to represent any of the clients is determined both by the lawyer's
ability to comply with duties owed to the former client and by the lawyer's
ability to represent adequately the remaining client or clients, given the
lawyer's duties to the former client. . . .
8. Even where there is no direct adverseness, a conflict of interest exists if there
is a significant risk that a lawyer's ability to consider, recommend, or carry

3. out an appropriate course of action for the client will be materially limited as a
result of the lawyer's other responsibilities or interests. . . . The critical
questions are the likelihood that a difference in interests will eventuate and, if
it does, whether it will materially interfere with the lawyer's independent
professional judgment in considering alternatives or foreclose courses of
action that reasonably should be pursued on behalf of the client.
13a. Where a lawyer has been retained by an insurer to represent the insured
pursuant to the insurer's obligations under a liability insurance policy, the
lawyer may comply with reasonable cost-containment litigation guidelines
proposed by the insurer if such guidelines do not materially interfere with
the lawyer's duty to exercise independent professional judgment to protect
the reasonable interests of the insured, do not regulate the details of the
lawyer's performance, and do not materially limit the professional discretion
and control of the lawyer.
30. A particularly important factor in determining the appropriateness of common
representation is the effect on client-lawyer confidentiality and the attorney-
client privilege. With regard to the attorney-client privilege, the prevailing
rule is that, as between commonly represented clients, the privilege does not
attach. Hence, it must be assumed that if litigation eventuates between the
clients, the privilege will not protect any such communications, and the clients
should be so advised.
Rule 32:1.8: CONFLICT OF INTEREST: CURRENT CLIENTS:
SPECIFIC RULES
(g) A lawyer who represents two or more clients shall not participate in making
an aggregate settlement of the claims of or against the clients, . . , unless each
client gives informed consent, in a writing signed by the client. The lawyer's
disclosure shall include the existence and nature of all the claims . . . and of
the participation of each person in the settlement.
Pertinent Comments to Rule 32:1.8:
13. Differences in willingness to make or accept an offer of settlement are among
the risks of common representation of multiple clients by a single lawyer.
Under rule 32:1.7, this is one of the risks that should be discussed before
undertaking the representation, as part of the process of obtaining the clients'
informed consent.
Rule 32:1.9: DUTIES TO FORMER CLIENTS
(a) A lawyer who has formerly represented a client in a matter shall not there
after represent another person in the same or a substantially related matter in
which that person's interests are materially adverse to the interests of the

4. former client unless the former client gives informed consent, confirmed in
writing.
(b) A lawyer shall not knowingly represent a person in the same or a
substantially related matter in which a firm with which the lawyer formerly
was associated had previously represented a client
(1) whose interests are materially adverse to that person, and
(2) about whom the lawyer had acquired information protected by rules
32:1.6 and 32:1.9 (c) that is material to the matter, unless the former
client gives informed consent, confirmed in writing.
(c) A lawyer who has formerly represented a client in a matter or whose present
or former firm has formerly represented a client in a matter shall not
thereafter:
(1) use information relating to the representation to the disadvantage of the
former client except as these rules would permit or require with respect to
a client, or when the information has become generally known; or
(2) reveal information relating to the representation except as these rules
would permit or require with respect to a client.
Pertinent Comments to Rule 32:1.9
2. The scope of a “matter” for purposes of this rule depends on the facts of a
particular situation or transaction. The lawyer's involvement in a matter can
also be a question of degree.
3. Matters are “substantially related” for purposes of this rule if they involve the
same transaction or legal dispute or if there otherwise is a substantial risk
that confidential factual information as would normally have been obtained in
the prior representation would materially advance the client's position in the
subsequent matter.
IV. Recap: Evaluating Potential Conflicts
1. Conflict check — actual or potential conflicts
2. Multiple clients and need for written conflict waivers
 Multiple physicians in same practice group
 Consider risk of motion to disqualify defense counsel by plaintiff’s
counsel based on perceived conflict

5. 3. Coverage issues
 Generally, the insurer will advise the defense attorney of coverage
disputes when the claim file is sent. However, the attorney defending the
insured in the underlying case will not be involved in any coverage
disputes because of the potential for conflicts of interest between the
insurer and its insured.
 Query, what if defense counsel discovers facts which may take the case
out of insurance coverage-does the duty to the defendant preclude him or
her from informing the insurance company?
 How does defense counsel represent the insured at trial on the non-
covered claims, e.g., punitive damages and the need for special
interrogatories?
 How does defense counsel defend both the principle and independent
contractor whose interests are otherwise aligned, where the independent
contractor is alleged to be an apparent agent? Will defending against the
agency claim reduce the potential available insurance coverage, and also
give the appearance of not supporting the alleged agent?
4. Permissive or compulsory counterclaims and cross-claims
 Cross-claims against other defendants? Normally, not a good idea and,
if necessary, consider reserving for a subsequent contribution claim
that may be brought within one year following satisfaction of the
judgment.
 Counterclaim for the plaintiff's unpaid medical bills? Can/should
defense counsel refuse to pursue unrelated counterclaims?
5. Consider settlement issues that may arise
 Data bank - All settlements paid by the insurer, even nominal ones, must
be reported to the National Practitioner Data Bank. How does the insurer
allocate the amount of the settlement among multiple insured clients when
reporting the settlement to the data bank?
 Non-covered claims - If plaintiff's claims exceed policy limits or include a
punitive damage claim for which there is no coverage, and the defendant's
personal assets are exposed, does an offer to settle within policy limits
present a conflict potential?

6. V. Initial Client Conference
1. Before your client conference: (a) evaluate the case for possible dispositive or
pre-answer motions; (b) review the medical records and research the medical
issues in preparation for your meeting; and (c) research the parties on line,
including www.iowacourtsonline.com, Facebook, Linkedin, etc for any
potentially useful information.
2. If feasible, the initial client conference should be in your office, not your client’s.
3. Be a good listener and manage expectations. Explain what your client can
expect for each phase of the litigation, as well as potential outcomes.
4. Discuss each allegation of plaintiff’s Petition and compare them with the
medical records for purposes of preparing an answer or responsive pleading.
Discuss inconsistencies and any weaknesses or areas of vulnerability in the
defense.
5. Consider tape-recording a portion of your client interview on the key
issues and have that transcribed (by your secretarial staff) for later use
internally. Do not disclose to experts or third parties because it will waive
the attorney-client privilege protection.
6. Develop Themes for your defense.
7. Discuss potential experts and graphics to assist you and for possible use
at trial.
VI. Litigation Holds and E-Discovery
The duty to preserve is triggered when litigation is reasonably anticipated.
Determining when litigation is “reasonably anticipated,” can vary from case to
case. When a lawsuit is filed is an obvious triggering event, but the duty may arise
even before a lawsuit is filed if a party is on notice that future ligation is likely. The
Sedona Conference commentary on legal holds, Guideline 1 states that “reasonable
anticipation of litigation arises when an organization is on notice of a credible
probability that it will become involved in litigation, seriously contemplates
initiating litigation, or when it takes specific actions to commence
litigation.” Therefore, the receipt of a demand letter may be the triggering event,
but not always. A rumor or threat of litigation generally will not trigger the duty to
preserve. It really is case dependent. The following is a sample litigation hold for
use as appropriate in sending to your client/insured:
You are required by law to take all reasonable steps to preserve all
documents, files, and communications related to the care and treatment of

7. [Plaintiff]. You need to identify persons who may have information subject to
this preservation requirement and alert them of the requirement to preserve
documents. This directive is important because failure to comply with the
following requirements could result in legal sanctions or impair our position
in defending this claim.
Types of Documents Subject to this Hold
Documents subject to this Legal Hold include all physical and electronic
documents, files, and communications containing the information related to
the care and treatment of [Plaintiff], including but not limited to: e-mail; e-
mail attachments; stored voicemail; instant messages; text messages; word
processing documents; spreadsheets; databases; images; audio, video, or
audiovisual recordings; presentation documents; electronic calendars and
journals; and raw data. You must retain all such information in its current
form. Printing of electronic records is insufficient to meet this hold
requirement. You must retain all non-identical copies of this information.
For example, if an electronic document was printed and handwritten notes
taken on the print-out, both the electronic document and the print-out must be
retained. All now existing and future records are subject to this hold. New
records created as a result of this litigation must also be retained.
Suspension of Automatic Deletion Procedures
You must suspend the automatic or routine deletion of the information subject
to this hold. Processes that must be suspended while this litigation hold is in
place include but are not limited to: the automatic deletion of e-mail; the
deletion, re-use, or destruction of back-up media and tapes; and the
reformatting, deletion of files, or "wiping" of computer hardware used by any
of the persons who have relevant information or any computer hardware that
may contain information subject to this hold.
VII. Communicate, Communicate, Communicate
 Return all client phone calls and emails promptly, within 24 hours if possible.
Ask staff to return a call and explain the delay if you cannot personally
respond.
 Send regular communications on the status of the client's matter, even if there
is nothing new to report. Document all discussions with the client, and if your
client approves, confirm with emails.
 Send copies to your client of all work being done on their behalf.
 Use file-closing letters/emails at the end of a representation to confirm
that the representation has concluded.

8. VIII. Recent Decisions and Practice Pointers
1. ERISA does not preempt 147.136. Denham v. Hockmuth, Polk County, Case
No. LACL128913, order filed 01/05/16 granting defendants’ motion for
partial summary judgment:
ERISA does not preempt Iowa Code Section 147.136. It is effective to bar
Denham Plaintiffs' claims for past medical expenses to the extent those
medical expenses were replaced or indemnified by insurance. Section
147.136 also bars Deere & Company from recovering as subrogee for such
expenses because, as subrogee, Deere & Company's rights are no greater
than the rights of the surbrogor. St. Paul Ins. Co v. Horace Mann Ins. Co.,
231 N.W.2d 619, 625 (Iowa 1975).
2. Challenge expert testimony based on witness accounts. State v. Tyler, No.
13–0588, __N.W.2d__(Iowa 2015), provides a basis for challenging expert
testimony that relies on a witnesses’ account of the facts:
Dr. Thompson's opinions on the cause and manner of Baby Tyler's death
were based primarily, if not exclusively, on Tyler's inconsistent and
uncorroborated statements to police. We also conclude that under the
unique facts of this case, Dr. Thompson's opinions were inadmissible
because they amounted to an impermissible comment on Tyler's
credibility.
Op at 41. As stated by Justice Waterman in his dissent: “The majority's
opinion will inevitably lead to the exclusion of a wide variety of expert
opinion testimony based on witness accounts.” Op at 85.
3. Getting Medical Records after Fagen v. Idding, No. 14-0095 (Iowa
2015). Three justices adopted a new protocol under Iowa Code Section
622.10:
When a party refuses upon request to provide a patient’s waiver under
section 622.10, the court must make sure the party seeking the waiver
is not permitted to go on an unlimited fishing expedition into a party's
mental health records. Therefore, the person requesting the waiver
must make a showing that he or she has a reasonable basis to believe
the specific records are likely to contain information relevant to an
element or factor of the claim or defense of the person or of any party
claiming through or under the privilege.
Op at 15-16. But three other justices disagreed with this protocol, and the
remaining justice concurred “in result only.” So the law appears undecided.

9. See Casenote: Iowa Supreme Court Offers Up Dueling Standards For The
Discovery of Medical Records, by Ryan Koopmans, IDCA Defense Update
April 2015, Vol. XVII, No. 1.
4. iPad and iPhone Apps for trial graphics – see www.visiblebody.com for
three separate Apps of the human body showing excellent virtual 3D images.
This is a great resource for use with clients, experts and creating
demonstrative exhibits for trial.
5. Reptile Theory. “A Brief Primer on the Reptile Theory of Trial Strategy:
Plaintiff Psychology and the Defense Response,” by Ann T. Greeley, Ph.D.
DecisionQuest Association Here, State College, PA, Presented to the ABA
Section of Litigation, 2015 Section Annual Conference. The Introduction to
this informative article begins:
The typical plaintiff’s opening used to begin with a sympathetic
explanation of the plaintiff’s ordeal and injuries, and this emotional plea
was followed by a Day in the Life tape making the jurors want to give a
damage award—right? Not anymore. Plaintiff attorneys have discovered
that there is an approach that gets a better reception than the traditional
pull for sympathy. The “Reptile Theory” (Ball and Keenan, 2009) is here
and is flourishing in trial courts across the country. These plaintiff
techniques focus on the defendants’ behavior rather than attempting to
engender sympathy for the plaintiff. The focus is on anger, and the idea is
to make jurors believe the worst about a defendant, typically a company,
and its record of safety.
6. Get Paid. Improve the likelihood of your valuable time being paid by third-
party bill payers, by reading: “The Billable Hour. Bill Smarter. Bill More,” by
Annie Dyke at www.billbetter.net