“Face the Jury” is a podcast dedicated to confronting the issues involving medical malpractice in America– what it is, how to spot it and how to protect you and your family from medical negligence.
In this episode, we’re joined by one of the GOATs of medical malpractice – Pat Malone. Pat is a leading patient safety advocate and has won just about every award in the industry for his work. He’s an accomplished author, fellow Inner Circle member, and has a long record of exceptional verdicts and settlements on behalf of his clients.
Lloyd: Our guest today is a leading patient safety advocate and attorney representing seriously injured people in lawsuits against hospitals, doctors, drug manufacturers, insurance companies and other corporations. Our guest practices trial law in Washington DC and has achieved amazing results for his clients over a career now spanning four decades.
But the mark of a truly great trial lawyer is not just the ability to succeed in the courtroom. It’s a desire to teach other, less experienced trial lawyers how to succeed for their clients. He has enormously impacted the practice of law, co-authoring what is considered the most important book on plaintiff trial practice, “Rules of the Road a Plaintiffs Lawyers Guide to Proving Liability.”
In 2012, our guest was the lead author of a follow-up book, “Winning Medical Malpractice Cases with the Rules of the Road Technique.” He also co-authored the book “The Fearless Cross-Examiner.” This book aimed to overturn standard advice on how trial lawyers should conduct cross-examination and instead advocated a more analytic and adaptable approach.
Before attending law school, our guest was a medical writer and investigative reporter for the Miami Herald. He was a finalist for a 1980 Pulitzer Prize for “Dangerous Doctors,” a series of articles he co-authored identifying medical malpractice problems. He earned his J.D. from Yale Law School in 1984 and was a clerk to Judge Gerhard Gesell of the U.S. District Court for the District of Columbia in the mid-80s.
Our guest has received just about every honor and award there is for trial advocacy. It’s my pleasure to welcome you to the show, Patrick Malone.
Patrick: Thank you for having me, Lloyd. I almost didn’t recognize myself in the introduction.
Lloyd: Of course. Now when I think of Yale, I think of Supreme Court justices, big law in New York City, and ivory towers. We don’t necessarily think of a trial lawyer talking to juries in the trenches of the courtroom. Tell us how this happened. How does a Yale man end up dedicating his career to helping patients?
Patrick: I ended up at Yale because of luck and good fortune. I think they accepted me because I looked a little bit different than the typical overachieving high LSAT recent undergraduate. Instead, I had spent nine years in journalism at the Miami Herald; before that, I was at United Press International. I focused on medicine and the healthcare system, so I was primed to be a people’s lawyer. Then getting into Yale, I discovered happily that Yale at that time had and still does have a strong clinical program advocating for people.
There was a prisoner’s legal project for habeas work and prison conditions litigation. They had a family law clinic which I was also part of and argued a case in the Second Circuit when I was a law student that wound up as a reported decision about the rights of foster parents. We had a mental health clinic where we went to the state mental hospital and helped people with their petitions to be released.
It entwined you with the world of human reality and tragedies. It was a good place that had a lot of intellectual ferment of all sorts.
Lloyd: You did work exposing the problem of medical malpractice before you ever went to law school. I believe you wrote a book called “The Life You Save: Nine Steps to Finding the Best Medical Care and Avoiding the Worst.” You were finalists for a Pulitzer Prize for the title “Bad Doctors.” Tell us about that.
Patrick: The book “The Life You Save” is from about 10 or 12 years ago. It was about how to teach people how to get better healthcare. My number one rule was to get your medical records and read them. You find out stuff about yourself and your doctor, and sometimes they make mistakes about you. There are things about you that you didn’t even know, so I always say advocate for yourself.
The Pulitzer Prize runner-up was back at the Miami Herald, which was about a problem that persists today in medicine. We just had a blog post about this subject. The state boards of medicine bodies for doctors have always been, and seemingly still are, very scattershot in their enforcement of rules on the conduct of doctors.
When we did our series back in 1979, it was terrible. There was just this ethos among the members of the medical board, who were all doctors. They would be sympathetic when a fellow doctor came to them for discipline but lacked empathy for patients. We shined a light on the situation, which embarrassed them so much. Then and now, the big issue was professional self-discipline.
In medical malpractice, we encounter repeat offenders who hurt people and never get called to account by the licensing boards, which is a puzzle.
Lloyd: There’s another podcast I enjoy listening to called “Doctor Death,” which took place in Texas. Texas seems to attract doctors with spotty backgrounds because they’ve instituted a reform immunity for the health care professionals by restricting patients’ rights to get complete verdicts and access.
Many listeners would be interested in hearing about your courtroom success. What is a case you look back on with pride?
Patrick: I represented a little girl who suffered a chemical burn when she was about two weeks old. She was in newborn intensive care at Georgetown Hospital. She was born prematurely and fed through an intravenous line hooked up to her ankle. If the IV tip gets dislodged into the muscle or fat, it can cause an internal chemical burn, and it’s called extravasation. Her grandmother discovered the burn, thinking she had a red sock on her foot and realized that was not the case.
They eventually stabilized her, and I didn’t meet with the family until nine months later. She recovered but left the hospital with a scar wrapped around her ankle that made it look shriveled because the burn ate away the fat under her skin, which the body cannot replace.
When I first saw her ankle, I remember thinking it didn’t look all that bad, but it was obvious over the next few years when we got to trial, and she was five years old. She had also developed some problems with that leg not growing as fast as the other leg. The injury interfered with the growth plate, so she grew lopsided and had restricted ankle movement.
As a little kid, she was pretty good at covering it up – she would skip to cover up the fact that she wasn’t walking normally. It was something that looked charming but was a coping mechanism.
Lloyd: They took this case to trial?
Patrick: It’s funny you say that. We honestly talked to them about settling the case and wanted a number in the high six figures. There’s no damage cap in D.C., but we didn’t have hardly anything in the way of what they call special damages. We could have blackboarded some five figures worth of past medical bills and some future bills.
Ultimately by the time of the trial, it was a no-offer situation, but the jury returned with a $3.6 million verdict. The defense filed a post-trial motion saying it was the biggest extravasation IV infiltration verdict ever. The key thing I learned on that motion is that if you get a good verdict and have to defend it on a motion for remittitur, do not make the mistake of doing comparative verdicts.
Lloyd: You make a great point, Pat because you’re right. I mean, every case is unique because every person is unique. I’ll hear some of my colleagues who get sucked into this defense trap of looking at verdict reporters making judgments on what their case is worth based on the published verdict reporters. It’s your case, and you can’t take a shortcut by looking at a reference book.
Patrick: I agree with you. It’s a frequent inquiry – what’s it worth? It’s not a horrible question. I mean, there is a range you can get for certain types of injuries. A lot of case value depends on the moral worthiness of your people.
In the burn case, I explained to the jury that the parents weren’t asking anything for themselves. This trial was all about Rachel, the girl. All the money will go to an account preserved for her. If you can play the selflessness card for your clients, it’s helpful.
In D.C, they expanded the rule to say that you could have a claim for negligent emotional distress if the defendant owed you a duty of emotional care. So, we pointed out that in the newborn intensive care unit, the hospital states the baby and parents both count as patients.
The trial judge didn’t think it was a good claim. So, a year before the trial, they filed a motion to dismiss, and we lost. Post-trial, we had the only real appealable issue, which was the denial of the claim from the parents. We used this issue to resolve the case. They wound up paying the full amount of the judgment for the little girl and a confidential sum for the parents.
Lloyd: During your story, the point crossed my mind about how the law, rules, and interpretation of the law doesn’t stay still. Good, creative lawyers like yourself always think of ways to advance your client’s case.
It’s a significant role that we always think of how the law can serve our clients. The law is not meant to be this monolithic impenetrable structure, so that’s a great example.
This engaging conversation is so action-packed that it will take us another episode to unpack in full. Stay tuned for Season 3, Episode 3 of Face the Jury.