Email smack down: dear defense lawyer - are you hoping our client will die

Medical Illustration:  By Aaron Weholt

Medical Illustration:  By Aaron Weholt


Adversarial litigation can  leave us feeling angry and indignant on behalf of our clients.  Someties we can turn our cheek.  Walk away.  Other times, we need to engage.  When we decide to strike back, we always need to remember to keep the court in mind. 

Written interchanges by mail or email have the potential to end up in a motion before the court. Retaliating to a bad email by throwing out a heated written slap is not a good idea.  It can end up as Exhibit A.

I used to wait 24 hours before responding to make sure was able to be logical and tactical instead of hotly emotional.  This is a good rule of thumb.  But not one that I still follow after 28 years of being in practice.  Write.  Re-read.  Look at it from the Perspective of - can it be Exhibit A.  If so, hit send.   

Nov. 26, 2013. 3:15 pm

Karen -- As you know, we've been asking for more than a month for information about the PET scan that HS was supposed to have done in early October.  I also asked to know when it was done so that we could get the updated information as soon as it was performed.  You did initially tell me in response to my inquiry that it had been postponed due to your client's hospitalization with pneumonia, but has it been done now, and if so when and where?  The judge said that within 24 hours of you getting medical records, you were supposed to provide them to us and the PET scan results was one of the key medical records we said we needed when the judge said this.  So do you have it (and "you" includes your client, case manager or any of your other experts or retained "case workers")?

I understand at last week's deposition at the Vancouver Clinic you expressly interfered with MC's efforts to learn whether the PET scan results were contained in the Vancouver Clinic chart even though we have a valid release for those records and the chart had been subpoenaed for the deposition--I'm told that you instructed the physician not to provide us with the information from the chart or even to confirm yes or no whether the results were in the chart.  Our records retrieval vendor says they have checked with the Vancouver Clinic and Salmon Creek and one other location yet have been unable to obtain information or confirmation that the ordered PET scan was performed.  Clearly, as we have said many times, we need that information to assess damages.  If this mediation is going to be a serious effort to  settle this case, then it won't work if you are hiding this critical information from us.  So please confirm one way or another whether HS has gone in for the PET scan that was ordered in early October, if so where and when it was performed, and if you will provide us with the results.  As we have been saying, we want to know this before the mediation.

Thanks, T

Nov. 26, 2013.  5:03 pm

Dear T -

As we have gotten to know each other quite well over these past several months, we've pondered interesting differences in our makeup.  One example being that your office tends to book your flights home late.  While mine books them early.  I've suggested there is a basic optimism present in the plaintiff lawyer that is countered by the relative skepticism of the defense lawyer.    Your email of this afternoon highlights yet another difference.  One that is perhaps a bit more stark.

You see T, there is an elemental and fundamental difference in the way that we look at this litigation process in the context of an ill young woman like HS.  The plaintiff team is dealing not only with pretrial litigation; we are dealing with the humanity of our client's situation.  We were with her when she recently had three more inches of each leg sawn off.  We care about her deeply and see her not only as a plaintiff, but as a human being who is entitled to be treated with decency and respect.

You do not have a relationship with H and so we do not fault you for not caring about her the way that we do.  However, the defense's almost single minded pursuit of any hint of a cancer diagnosis, has left those of us on the plaintiff side, feeling absolutely breathlessly - appalled.    Can you step back from your advocacy and see how this looks.  The message that you are transmitting.  At times it appears that you are hopeful that a cancer will indeed be found.

I'm sure this is not true.  But this is the message that you are transmitting by your actions and accusations.

Here are the facts.

HS received a PET scan on November 7.   Dr. H arranged for the PET scan.  We presume that Dr. H has the results.  HS has not been informed of the results.  She has not had her followup appointment with Dr. H.  HS has never seen the PET scan.  We have never seen the PET scan.  We have never been informed of the results.   We have asked the case manager if she can procure it, but she cannot.

I ask that you now step back T.  And look at this situation from a human perspective.  If you went through a medical procedure and were waiting to find out the results.  And the results could potentially be very serious.  Would you like the lawyer for someone whom you are suing, to see those results before you.   More importantly, what right would any human being - lawyer or not - have that would give them the privilege of viewing such utterly personal information before a patient.

Now let's turn to Dr. C's deposition taken last week.  As has occurred during each deposition of a plaintiff witness this month, the defense has tried to find out about the PET scan.  Dr. C was discharged as PCP by the plaintiff one year ago.  Her involvement in plaintiff's care ceased one year ago.  It was improper from MC to attempt to have Dr. C dig through Vancouver clinic records that she did not create or utilize during her care of the plaintiff.

Since we have not seen, heard, or learned of the PET scan results, we haven't hidden anything from you.  Regardless, we will continue protect HS' right to be treated decently, even if we cannot compel your human compassion and kindness.