Termination of the Designation of Trial Counsel for Medical Malpractice Defendants: Presumptive But Not Automatic

by John Zen Jackson

The highly respected and distinguished judge Wilfred H. Jayne made the following observation in Amo v. Genovese, 17 N.J. Super. 109, 85 A.2d 529 (App. Div. 1951), certif. denied, 9 N.J. 181, 87 A.2d 576 (1952):  “It is exceedingly desirable, if not imperative, that in the disposition of the modern quantity of litigation, expedition must supplant languor, but never at the expense of justice.”  With the issuance of its 2014 Omnibus Rules Amendment Order at the end of July, the New Jersey Supreme Court found a way to balance the clamor for administrative efficiency and calendar control regarding medical malpractice litigation with the administration of justice in individual cases.

The Court adopted a modification of the recommendation made by its Civil Practice Committee for an amendment to Rule 4:25-4.  Since 1964 the Rules of Court have provided that a party in a civil lawsuit may notify the court that a particular lawyer is designated to try the case.  If there is no attorney designated as trial counsel in accordance with the Rule, then the court and opposing counsel have the right to expect any partner or associate to proceed with the trial when the case is reached on the trial calendar.  By its terms, the Rule applies to counsel for plaintiffs and for defendants.  A subcommittee of the Civil Practice Committee reviewed data concerning significant backlogs in the disposition of medical malpractice cases and find that on average such case took almost four years to reach a trial date and such cases had the highest frequency of trial date adjournments.  The Report asserted that trials were “routinely adjourned” on the basis of the unavailability of designated trial counsel and noted that there were a “limited number of defense counsel permitted to try these cases.”  After due consideration, the Civil Practice Committee proposed an amendment that continued the designation of trial counsel procedure but revising the Rule so that such designation “shall expire” in all medical malpractice cases “pending for more than three years.”  The Committee’s Report adopted the subcommittee’s proposal for “the automatic expiration” of the designation of trial counsel.  It recommended that the amendment not go into effect until January 1, 2015 to allow time to accommodate the impact on already existing cases.  No type of case other than medical malpractice matters would be affected by the proposed amendment to terminate trial counsel designation.

The Supreme Court received comments from various bar organizations, some law firms, and stakeholders such as the Medical Society of New Jersey.  While the Supreme Court accepted the deferred effective date rather than using the September 1, 2014 date for most of the approximately 50 rule amendments in the Omnibus Order, it changed the language of the amendment to R.4:25-4.  As implemented by the Supreme Court, designation of trial counsel “shall presumptively expire” in medical malpractice cases that have been pending for more than three years.  The changed language sets an expectation regarding the ready status of a case but continues to repose in the bench – whether the presiding judge for the county or the actual trial judge – the need for the exercise of judicial discretion.

The defense of physicians in medical malpractice claims frequently present issues that will require the careful exercise of this discretion.  While meritorious claims are advanced against physicians, there are many cases that are either without merit or that present substantial defenses and answers to the asserted wrongdoing and liability.  But the only way for a physician sued for malpractice to avoid permanent harm to a professional career and reputation is to litigate the lawsuit to a successful conclusion.

Physicians must report to both the Federal Government’s National Practitioner Data Bank (NPDB) and the State Medical Practitioner Review Panel any settlements of malpractice suits filed against them as well as the entry of judgments against them resulting from a malpractice lawsuit.  Such collateral consequences of being sued and having a resulting judgment or settlement in tort cases are virtually unique to health care providers.  This reporting alone has a significant adverse impact on a physician’s professional career and reputation. Reports to the NPDB are accessed by health plans and insurance carriers; hospitals; nursing homes; and other healthcare entities.  Based on the information reported health plans may terminate participation agreements; hospitals may undertake a review of the circumstances of the settlement and take negative actions; privileging and credentialing may be negatively impacted; healthcare entities may revoke privileges or use the settlement as a basis not to privilege or employ the physician in the future.  Reports to the State Medical Practitioner Review Panel may result in investigations or disciplinary proceedings that could jeopardize one’s license but in any event will cause a disruption in one’s practice and life.  The compulsory change of defense lawyers from a previously designated trial counsel can result in a switch from a lawyer familiar with the matter to one who comes to the case late with the risk of lesser preparation and insight.  This heightens the potential for an adverse outcome in a case that could be won and increases the pressure to accept a settlement in a matter that should be taken to verdict.  Even the settlement of a case without merit must be reported by physicians. In fact, the only way for a physician to avoid harm to his/her professional career and reputation is to litigate to a successful conclusion.

In many instances physicians can and do choose an individual attorney, not a firm or the defense bar, to represent them in malpractice cases. The choice is frequently personal and is based on trust in that individual’s skill to bring the matter to a successful conclusion. The choice may be based on prior experience with the attorney, the recommendation of a trusted colleague, or the attorney’s successful record with similar cases. The bond between the physician-client and attorney grows throughout discovery and preparation for the trial. The physician-client puts his professional career and reputation in the hands of the designated trial attorney the same way a patient puts his health in the hands of a surgeon.  Thus, two important bonds are at risk here: the physician-patient relationship which is the subject of the litigation, and the attorney-client relationship which is crucial in the eyes of the physician to ensure that he/she has the counsel who has prepared the case and who will handle the trial to its conclusion.  In its case law the New Jersey Supreme Court frowned on “ghost surgery” where another surgeon was substituted for the individual who had been engaged and expected to do the operation.  A similar dynamic is presented by an automatic waiver of designated trial counsel status.

In addition to the trust that the physician has placed in his/her trial attorney, that attorney is best prepared to try the case. The attorney will know facts and medical and legal issues better than another attorney who is brought in simply to move the calendar. In fact, the designated trial attorney may be able to move the case more quickly, once the trial has started, than a newly designated one.

The need to move the calendar and to bring malpractice cases to a timely resolution is a mutually shared objective of all parties to the litigation. The pendency of a lawsuit has negative ramifications for all parties involved.  The toll of protracted litigation is significant in terms of the time required to defend and the emotional strain when a patient has suffered a bad outcome and believes that the physician did not exercise the appropriate standard of care. However, the need for trials to commence in an appropriate amount of time and the physician’s right to proceed at trial with his/her choice of counsel must be balanced against each other and assessed in light of reasons for delay.

The “presumptive” waiver of designated counsel after three years should not become “automatic” without taking into consideration the reasons that counsel is unavailable or whether counsel was available prior to reaching the three-year benchmark.  Judges should have discretion to consider all the reasons for delay, including the late identification of additional defendants and the need for additional discovery extending the time to get trial-ready as well as the continuing impact of prolonged judicial vacancies, on the trial schedule. Judges must have the discretion to weigh the potential harm to a physician of going to trial with a new attorney against the need to move the calendar.

It is the duty of the court to consider and determine issues before it so that the rights of the parties may be fairly protected in an orderly manner. It is as much an abuse of judicial discretion in refusing to exercise such discretion when warranted by the facts before the court, as it is to exercise that discretion improperly by means of a decision that is clearly erroneous on the facts or under the law.  But whether “presumptively” becomes “automatically” and the discretion is exercised in favor of mandatory waiver remains to be tested in the crucible of the trial calendar call.