November 18, 2025 • 38 mins
Amanda Hayes-Kibreab, Partner, King & Spalding LLP, and DeAngelo Norris, Senior Associate General Counsel, Grady Health System, discuss best practices for litigating health care disputes. They cover in-house and outside counsel collaboration, handling the pre-dispute process, using contracts to manage disputes, going to trial/arbitration, identifying and working with expert witnesses, and engaging in mediation. Amanda and DeAngelo spoke about this topic at AHLA’s 2025 In-House Counsel Program in San Diego, CA.
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Episode Transcript
Available transcripts are automatically generated. Complete accuracy is not guaranteed.
SPEAKER_02 (00:04):
This episode of AHLA Speaking of Health Law is
brought to you by AHLA membersand donors like you.
For more information, visitAmerican Health Law.org.
SPEAKER_03 (00:17):
Hello.
Good morning, good afternoon,depending on when you're when
you're logging in.
Thank you to AHLA for havingD'Angelo and I here today.
We're going to talk aboutstrategic litigation and
healthcare disputes.
This session is based on ourpresentation at the 2025
(00:40):
In-house Council program in SanDiego.
So it's a follow-on to that.
And we're excited to be heretoday to continue this
conversation with you.
I'm going to toss it over toD'Angelo Norris, who is Senior
(01:02):
Associate General Counsel atGrady Memorial Hospital in
Atlanta, to introduce himselfand tell you a little bit about
himself as we get started.
D'Angelo?
SPEAKER_00 (01:12):
Sure.
Hi, Emma.
It's great to see you again, bythe way.
So as Amanda mentioned, I workat Grady Hospital in Atlanta,
which is one of the largesttrauma hospitals in the
Southeast.
And uh here we have uh plethoraof legal issues, everything from
(01:35):
um medical malpractice, premiseliability to um guardianships.
So I've been at Grady for 18years.
It's been a spin a ride.
I really have enjoyed it.
And I really enjoyed our sessionthat we had in San Diego.
And um I can't wait to get intosome of the conversation.
SPEAKER_03 (01:56):
Thank you.
Um yeah, great to see you againtoo.
Um that way, it was a nice umdiscussion we had in person in
San Diego.
I'll just introduce myselfbriefly and and then we'll kind
of dive into some of uh somesome questions and some
follow-up.
Um I'm a uh healthcare partnerat King and Spaulding in the the
(02:20):
Los Angeles office of of Kingand Spaulding.
My um healthcare practicefocuses on representing uh
providers, including hospitals,hospital systems, uh medical
groups, other types offacilities, ASCs, laboratories,
(02:41):
um, any type of provider in indisputes and primarily disputes
over reimbursement issues withhealth plans.
Um I've been with King andSpaulding since 2018.
Um before that, I was at uh an Iwas also practicing healthcare
law um at a at a VT firm.
(03:03):
So um lots lots of lots of funin healthcare.
Um just to kind of get usstarted, D'Angelo, can you tell
us uh what kind of litigationmatters, what kind of cases uh
do you manage uh in your role?
SPEAKER_00 (03:21):
Sure.
So yeah, I kind of touched on alittle bit in my introduction,
um, but I think that when youand I spoke in San Diego, it was
unique to see that you'reoutside counsel, I'm inside
counsel, so it's kind of abalancing act.
But some of the things that Ideal with is giving advice and
counsel to our executives, ourC-suite, um, managing the uh
(03:44):
employment issues that we havehere, uh, whether it's um EEOC
or alleged wrongful terminationsor um mass terminations, we also
deal with uh a lot of premiseliability, and we also manage
outside counsel when it comes toour major medical malpractice
(04:06):
lawsuits.
We work with a team of outsideattorneys to plan our defense
strategies and to coordinate theuh legal operations, and we work
um closely with our riskmanagement team, which is a part
of legal affairs umbrella hereat the hospital, as well as
compliance and internal audit.
That's the entire team thatfalls under the uh legal affairs
(04:29):
division.
SPEAKER_03 (04:31):
Wow, really the gamut.
A lot, a lot of differentthings.
Um a lot of different topics canend up on your desk.
Um, and in your role as as asin-house counsel um in dealing
with outside counsel, what aresome of the the best practices
(04:51):
you've seen from outside counselin terms of you know managing
your your high-stakeslitigation?
SPEAKER_00 (04:59):
Sure.
So I think one of the thingsthat I can think of that comes
to mind is a communicationpiece, which is making sure that
whoever you have on the outsideis communicating effectively
with you about filings, aboutprogresses in the case, about
the barriers that they may havedealing with people at the
(05:22):
organization.
Sometimes outside counsel willrun into barriers and they'll
just stop and not necessarilypick up the phone and call.
So communication is key.
And um, sometimes we've had, Ithink, issues where there's a
new person assigned to the caseby outside counsel, but they're
not appropriately introduced tothe inside council.
(05:44):
Um and sometimes that can beirritating or it can be
something an area ofimprovement.
Um I think the best, the bestoutside councils that I've seen
over my 18 years are the onesthat understand our mission.
We're a public hospital, we're ateaching hospital, which is
very, very unique.
(06:04):
It means that our staff, themajority of our staff, they
learn and they go out into theworld, and we have you know new
residents coming in all thetime, that they understand that
part, and that our ultimatemission is to provide health
care, regardless of a person'sability to pay.
Um, and that has to match upwith our litigation strategies
and our goals overall.
SPEAKER_03 (06:27):
Yeah, that that makes sense.
SPEAKER_00 (06:31):
You know, to kind of throw it back at you a little,
Amanda, what what do you thinkyou would like to see from
inside counsel sometimes thatyou don't see from outside
counsel?
What would be some bestpractices or areas that inside
counsel could probably benefitfrom if they knew about?
SPEAKER_03 (06:49):
That's a that's a great question.
It's a and it's a hard questionbecause as outside counsel, you
know, that that that's yourboss, right?
Yeah, your your in-house counselis is your boss, and your um,
you know, you you report tothem, and your job is really
because obviously your yourboss, your insight counsel, um,
(07:10):
who's managing um the litigationalso has someone that they
report to.
So I I think of, you know, myjob is to make them look good
and to um help help themaccomplish their goals um for
the organization um and withinthe organization.
(07:31):
But, you know, I would I justwholeheartedly agree the
communication is key.
I mean, that that's kind of thethe cornerstone um of a good
in-house and outside counselrelationship, um, keeping each
other informed.
Of course, the outside council,um important part of their role
(07:52):
is to keep in-house counsel andthe and the business folks and
through ever whatever channelsthe organization prefers abreast
of what's happening with thelitigation.
Um, but that communication alsogoes both ways.
So learning new things aboutwhat is happening uh within the
organization.
And you know, I I can an examplecomes to mind um a dispute.
(08:15):
Um I'm managing um against apayer on behalf of a client.
Um, I I didn't find out until itwas done and dusted that uh the
client and the payer who we werein litigation with um were
working on and signed andcompleted a contract.
(08:39):
Um it would have been reallygreat.
It's pretty important.
The terms of that contract hadimpact on the case.
And and we found out about itafter after it was already done.
So things like that, I think,are you know, it all kind of
goes back to communication andkeeping those lines of
(09:00):
communication open.
SPEAKER_00 (09:01):
If I could supplement my answer just a
little bit, something I thoughtof when you were talking is I
love when we have an outsidecouncil and it may send us some
advanced sheets or somethingthat we're working on.
They know that we have a problemin a particular area.
Like right now, we're looking ata lot of AI and thinking around
AI.
So we have councils that willknow, hey, Grady is looking to
form a new AI.
(09:21):
Send me an article or send mesome conference information.
Even though we may not thankthem every time they send it,
it's very important.
And we use that information, youknow, inside to say, hey,
Amanda's thinking about us,she's sending us about our
issues, and it goes a long way.
So I think it works both ways.
SPEAKER_03 (09:43):
Yeah.
That's that's really good tohear because sometimes you feel
like you're sending stuff to toclients and you don't know if
it's useful to them or notbecause they don't necessarily
respond back either.
But it is good to know that itis often being used, even if
there's not a you know a reply.
SPEAKER_00 (09:59):
Yeah.
SPEAKER_03 (10:02):
Um of the things that we talked about um in San
Diego, and um I I I always youknow find is an important part
of um kind of setting the tablefor for litigation is the
pre-dispute practices.
And we talked a little bit aboutthis.
Um what strategies have youfound effective in managing
(10:29):
disputes, um, particularly onthe front end and the when
you're in the pre-disputeposture that can help you be
successful as the dispute goeson, or or maybe even get it
resolved before it actually goesto court.
SPEAKER_00 (10:46):
Well, one of the things I've learned over time is
um to meet with yourstakeholders internally first,
like to kind of get a layer ofthe land because sometimes there
are unrealistic expectations orthat maybe just
misinterpretations of what'shappening in the dispute.
So try to figure out number one,who are the parties involved
(11:06):
internally before we even reachout to outside counsel or before
we reach out to the opposingparty or the, you know, first
figure out who's involved.
And the second thing I try to dois to uh figure out the
expectations.
I mean, what are we trying todo?
What are we trying toaccomplish, you know, like any
good attorney should do, is sitdown and talk through those
(11:28):
things before uh reaching outand to see obviously if we have
anything in common.
Have we been working togetherbefore in other relationships?
Are there other synergies we canwork off of to help to resolve
this dispute?
And we also have an internalthat's in legal affairs, an
internal risk management team.
(11:49):
And a lot of times they haveinformation in their systems, in
their tracking systems abouttrends, about other things that
may be relevant to helping youto come to a resolution.
It could be a similar disputethat has already been settled uh
with someone else or in anothersituation.
I always try to get thatinformation up front before and
kind of have a game plan beforeI reach out.
(12:11):
Um, and also one other thing Iadd before I close is that
sometimes knowing who toapproach in the on the other
side or who has kind of pushedthis dispute to the point of
we're going to court, we'regonna fight this, we're gonna
sue you guys, and there may besome soft spots in that area
where you can make progress thatsomeone else hasn't really um is
(12:34):
fertile ground for resolutionsometimes.
SPEAKER_03 (12:38):
Yeah, and and you probably won't be able to find
that out unless you areconnecting with your internal
stakeholders because those arethe people who know who the
people are likely on the otherside, right?
That they may be in the bestposition to know who's kind of
driving um the the um thedispute from a party perspective
on the other side.
(12:58):
So that might give you anopportunity to reach out and see
if there's some way to resolveit before it goes goes to the
next step.
SPEAKER_00 (13:06):
Um yeah, it's it's kind of like you know, what you
learned in law school, you know,the meaning of the mind.
So at some point in thisrelationship, we had a mutually
beneficial relationship.
We thought that we were greatpartners, you know, you were the
fit and we were working thingsout appropriately, and now
something's come up, andsometimes it's not what you
(13:27):
think it is.
It may not be as simple as alegal answer, it may be
something softer or somethingthat's more personal that you
have to kind of weed out andfigure out how to reconnect
these partners that werepartners for a very long time.
Whether it's, hey, we need toget rid of this person and get a
new person or maybe some hardconversations, but sometimes
those things have to happen toprogress to the next stage.
SPEAKER_03 (13:51):
Yeah, I I often find that um that that's exactly
right.
There are are you know, thebusiness is run by people and um
there are personalities alwaysinvolved at at different levels
of a dispute.
And so kind of figuring outwho's who whose motivations are
(14:11):
where, what you know, whatpeople care about and what what
people um what's kind of drivingtheir decision making can help
you potentially find aresolution.
Um we talked about contractingwhen it comes to disputes, and
we talked about this in SanDiego as well, and how to
(14:32):
effectively use contracts um tohelp um manage disputes on the
front end.
What what are your thoughtsabout you know approaching
contracting to and and how thatinterplays with dispute
management?
SPEAKER_00 (14:49):
So a couple of things that I think about when I
think about this area is one Ifeel that if you have a lot of
terms and contracts that arejust really hyper-specific, it
can sometimes cause problemsthat are not anticipated when
you write the contract.
So I think that contracts, allcontracts need to have room to
(15:11):
breathe, although it doesn'tnecessarily have to be just an
open contract, so anything canhappen.
I've found that determiningwhere those areas where the
parties can agree to be flexibleare important up front, one,
two, we've used uh terms andcontracts that have been very
(15:31):
effective in the past, termssuch as requiring the leaders of
both organizations to meet priorto any type of even arbitration,
mediation, or lawsuits beingfiled to have them sit down.
And that has surprisingly, wellprobably not surprisingly, still
allowed the speech, you know,just the CEOs of both companies
(15:52):
talking and figuring out whetherit's mutual uh understanding.
We've even used in someagreements, contracts,
agreements where we can't decideon the uh choice of law, we've
used the term that it will be inthe state of the non-moving
party.
So if I sued you, Amanda, I haveto come to your home turf.
(16:14):
And if you sued me, you have tocome to Georgia.
So that kind of puts a littleputs a little rope up, if it's
not a serious, serious thingthat needs to go to court.
So those have been effective.
Uh, what about from outsidecounsel?
Um, how do you view when youlook at contracts that are in
dispute, how do you view umthose as far as resolution and
(16:35):
and and ways to get to aresolution easier?
SPEAKER_03 (16:39):
Yeah, you know what something that you said really
resonated with me about how ifthere are too many um too many
very complicated pre-disputeprocedures, it can actually get
in the way um or make things,you know, present a kind of
unanticipated um challenges, butat the same time, you know,
(17:02):
requiring things like you know,a meeting of the stakeholders of
you know, high-level executivesat the company actually meeting
to discuss the dispute, becausesometimes when those people get
in a room, they can figure out aresolution that maybe the the
rest of their teams were didnot, you know, um did not take
(17:23):
advantage of.
Um but I but you know, I I oftendo um feel like the dispute
resolution provisions arethey're not um they're not the
focus of the business peoplewhen they're making these
contracts.
They're focused on the businessterms, they're focused on, you
(17:45):
know, the the the money umwithin the contract, but these
dispute resolution provisionscan actually have a really big
impact on the litigation itselfin you know a few different
ways, sort of just at theoutset.
Do they require arbitration ordo they allow the parties to go
to court?
(18:06):
That can have a big impactbecause sometimes, um, depending
on the nature of the dispute,one party or the other may
really not want the publicity.
And they would really rather itbe an arbitration.
So they're not, you know,necessarily going to be getting
news coverage over that dispute.
That works on both sides becausethe one side that may know that
(18:29):
the other side doesn't want thepublicity has that leverage now
to say, you know, I can takethis to open court, there's no
arbitration provision, and thatand that can actually have a
have a significant impact.
SPEAKER_00 (18:40):
Um I've also found, Amanda, that sometimes the
disputes that I've dealt with incontracts, it comes down to the
person that's trying to sellthis business to the hospital
saying one thing, and maybe thelegal team or the team that
wrote the contract is not reallyas involved in that conversation
because obviously the personthat's here wants to make a
(19:01):
sale.
That motivation is a littledifferent than the people that
really wrote the contract andthey understand the legal um
barriers to what the businessperson is trying to do.
So you have to figure that partout first.
Even sometimes we get contracts,and the legal team to edit the
contract is not even on the youknow the document.
(19:21):
You know, we have to find outwho's your legal team.
We don't want to talk to theperson who sold this contract,
we want to talk to the personwho wrote the contract, who's
gonna be responsible for thelegal terms of the contract.
SPEAKER_03 (19:31):
Right.
That may that makes a lot ofsense.
And then also, you know,depending on the contract, some
contracts don't say anything inthe dispute resolution terms
about discovery.
And then other contracts arevery prescriptive about exactly
what discovery can be done andwhat can't be done.
Um, some will just refer to if,you know, if if if it's going to
(19:55):
be a triple A arbitration, theAAA rules or or um Jams rules,
something like that.
Um but I find that's that oftenthe the contracts with very
prescriptive discovery rules cancan cause challenges in the
litigation if your discoveryneeds are different from from
(20:18):
what may have been contemplatedat the time that the contract
was entered into.
SPEAKER_00 (20:22):
And also we're we have a we're against a lot of um
the evergreen terms because alot of times people change and
the organization changes.
So if you have these contractsthat just continue on into
perpetuity, you don't reallyhave a chance.
Even if you're gonna go backwith the same contract, it still
is a good idea to put some kindof a provision that allows it to
(20:43):
be renegotiated in terms to beupdated.
Um I think it makes it cleareras opposed to doing these
one-page amendments to continuea contract for 15 and 20 years
without looking at regulationsand compliance, things that have
changed over the course of those15 years.
SPEAKER_03 (21:01):
So sometimes we see some really old paper, right?
Really old paper that's justbeen evergreened and and you
know, tinkered with from time totime, but but really out of date
uh dispute resolution umprovisions.
And then an another, I would sayanother piece that often trips
(21:21):
people up and they're becausethey're not thinking about it,
um, necessarily being in thedispute resolution provision,
but time bar terms.
SPEAKER_01 (21:31):
That's right.
SPEAKER_03 (21:32):
Um those as opposed to just you know state law
applying, if the parties can umcontract for specific time bar
provisions.
And sometimes I've seen them bereally, really short and the and
no one's expecting it.
And you know, the client comesto us with like, hey, we have
(21:52):
this this dispute, um, great,and then we get into the dispute
resolution terms and there's asix-month time bar.
That's a problem.
Um, yeah.
So and and sometimes the clientjust doesn't look there for that
type of provision and doesn'tnecessarily know know that
(22:14):
that's that that's there.
So there's sneaky things indispute resolution provisions,
and and it's it's really um oneof the first places I look in a
contract as I get a contractfrom a client and start
analyzing it.
It's one of the first places Igo because I'm like, okay,
what's the rules of the roadhere that we're dealing with so
that I can advise the client onkind of process um and and what
(22:39):
our options are.
SPEAKER_00 (22:41):
That's good.
That's good practice.
SPEAKER_03 (22:44):
Um yeah, go ahead.
SPEAKER_00 (22:46):
I was gonna say, so to transition uh a little bit
about um going to trial.
You want to talk a little bitabout that, maybe?
SPEAKER_03 (22:53):
Yeah.
Um yeah, if you've made it allthe way through discovery and
and and maybe uh a mediation andthings still haven't gotten
worked out, um you're you'regoing to trial or going to
arbitration.
Um you know when when andactually our our team um goes to
(23:16):
trial and arbitration a fairamount.
I'll be in a jury trial all ofNovember and um and then I then
I'm off to another state for uharbitration most of December.
So um we actually go a fairamount, but a lot of clients
don't go um very often.
And so I think it's important tospend a lot of time um leading
(23:39):
up to trial with with yourin-house counsel, of course, but
a lot of time with yourwitnesses, particularly if your
witnesses are coming from insidethe organization, because you
know, as you spoke at the top toyour mission, um hospitals are
mission-driven organizations andand employees are focused on
(24:00):
delivering that mission,delivering health care to their
communities.
And a trial is very distracting,is it's not what they want to be
doing.
So, you know, I I the the thecare and and handling of the
witnesses, particularly ifpeople are gonna need to be
coming from the hospital to totestify, it's really important
(24:21):
to kind of warm people up toit's okay, it's not the end of
the world, it's not that scary.
These are just, you know,arbitrators or jurors and and
they want to know what you haveto say.
And spending a lot of timepreparing everyone goes a long
way, I think, to to kind ofthese nerves.
SPEAKER_00 (24:42):
Right, I agree with that.
And with the witness prep, wetry to have our witness prep
here at the hospital so itdoesn't um it's not too
inconvenient for the providersto come down to our office to do
the witness prep and to actuallybe there for them because you're
right, they panic.
I mean, you know, as a teachinghospital, people are gone maybe
in the two years when somethingcomes up and they're calling
(25:03):
back.
I have filling out a newapplication, you know, at a new
hospital, and they're asking meabout being in lawsuits.
Have I been sued?
You know, what's happening?
What should I put on this as aresponse?
So they're really nervous.
You know, the providers are verynervous about being named.
But what we try to explain tothem is very rarely is it one
(25:23):
person that did one thing thatcaused any bad result?
Um, and sometimes we have to sitdown and have your piece to
appropriately defend you and theother parties involved.
Um, and let sit down and pullout your piece, parse out what
you did or what you didn't do,and talk about it and let us
know, you know, why you did whatyou did.
SPEAKER_03 (25:44):
Yeah.
From from an inside counselperspective, what are yeah, you
know, what are your expectationsof outside counsel um when
you're going to trial?
SPEAKER_00 (25:57):
I expect um the outside counsel to first of all,
um, if they're going to bereaching out to witnesses or
talking to someone at thehospital, to at least have an
inside attorney involved in thatfirst conversation with that
person so that we can make surethey're comfortable speaking
with you and they know thatyou're an appropriate party to
(26:18):
speak with, um, to kind of setto tee it up and it sets the
tone for the relationship.
That's the first thing I wouldsay.
I also expect outside counsel towe have um occurrence analysis
or updates that we need on thecase prior to the you know
trial, prior to mediation, priorarbitration.
I expect those to be updated.
(26:40):
So the posture of the of thetrial if it's changed any as far
as our likelihood of success, weneed to know that.
Um if if something is you knowhasn't been discovered yet, but
it may turn the case, it may bejust positive of what the issue
is.
I want to know that too.
Um, and it's important thatoutside counsel realizes that we
(27:05):
um obviously are here for our umdefense of our position, but we
also are here to protect our uhwitnesses who are employees.
So, you know, in depositions wedon't like to see our employees
getting beat up or treatedunfairly.
We expect you to advocate forthem as well as the hospital,
(27:27):
but to not throw out people tothe wall and to understand that,
like you said previously, thatwe are a hospital, and our main
thing is to make sure peoplehave uh patient care, health
care, um, and it's appropriateand it's not in the world or the
the field of litigation orlawsuits as far into a lot of
(27:48):
people.
You know.
SPEAKER_03 (27:49):
Yeah.
Yeah, all all of that um reallyresonates um with me.
And I I I find, you know, as youmentioned, um if you're
communicating with outsidecounsel, communicating with a
witness, for example, makingsure to go through in-house
counsel at least at thebeginning, um that's that's
(28:13):
really important because youknow, if you're talking to a
nurse or a doctor or anyoneelse, someone who works in
finance or managed care, theyneed to know from their internal
people that this is I can talkto this attorney and this is
this is okay, and I'm not, youknow, stepping out of line here
or in or in trouble or anythinglike that, because sometimes um
(28:37):
it's scary to hear from anattorney if you're you know just
someone doing your job and um itit's it it goes a long way to
have that warm connectionbetween the in-house counsel and
outside counsel and the andmaybe a potential witness or or
something like that.
I completely, completely agreewith that.
(28:59):
Um in terms of um experts, howdo you typically like to handle
expert witnesses?
We talked a little bit aboutthis um before, um, and your
expert needs maybe in in thekinds of cases you manage, maybe
a little bit different from thekinds of experts that that I use
(29:19):
in in my cases, but you know,how do you how do you approach
working with outside counsel toidentify experts?
SPEAKER_00 (29:26):
So most times when we have the cases to kind of
narrow down to medicalmalpractice cases, we will have
our outside councils to give usan a range of experts, or
sometimes we'll even look atexperts we've used before that
have been uh successful for usor we feel successful.
(29:47):
And we'll normally choose basedupon the CD or based upon the
reputation of the expert withthe outside counsel, but we
normally allow our outsidecounsel to present us with that
first list, and as we weretalking.
Them before at the hospital, thetype of hospital I work at, we
do have people that are expertsin the field, but we we never
use them in our own cases.
(30:08):
But we do go over some of thedetails of cases so that we can
get some of the blind spots thateven the experts that we hire
might have missed.
Um, to kind of give theattorneys outside of attorneys a
um we present before the boardin a legal uh forum and this
confidential meeting where theattorneys love it because they
(30:29):
can get feedback from all thesepeople that deal with the exact
same types of issues every day,and they can point out things
that you know even our attorneyshaven't thought about before
because they deal with thosethings.
So there's kind of an internalexpert review that helps to
shore up the case.
SPEAKER_03 (30:45):
Yeah, that that's that's that's great.
That sort of connection and andworking between outside and
in-house counsel really closelyand selecting the experts, I I
find um is also sort of a bestpractice because sometimes
you're at from an outsidecounsel's perspective, your your
(31:07):
in-house folks, your in-housecontacts, they often have um,
you know, either they may have,you know, a really good idea in
terms of an expert, or um, ifyou have a good idea in terms of
of an expert that you want themto consider, there may still
need to be some internal bettingof that person and you know,
(31:29):
kind of discussions um beforeproceeding.
SPEAKER_00 (31:33):
Um also amazingly effective when we do those um
those meetings to identifytrends.
I mean, a lot of times we kindof bring cases that are
similarly situated, if it's alluh EMS cases or maybe a lot of
mother baby cases or whatevertype of cases, then we can see,
oh, I see what's happening that,or the experts in the room can
(31:56):
identify some of thedeficiencies to help us to give
a better product out.
You know, maybe there's anotherform we need to do, maybe
there's another step in theprocess.
SPEAKER_01 (32:04):
Right.
SPEAKER_00 (32:05):
That, or maybe that's this is a trend overall,
you know, that this is happeningeverywhere, and they would know
that more than we would, andthey um share that information.
It helps a lot with the cases.
SPEAKER_03 (32:17):
Yeah.
SPEAKER_00 (32:18):
Yeah.
SPEAKER_03 (32:19):
Um last topic um that I thought it'd be
interesting to get yourperspective on.
Um, and this is something thatcan happen sort of at any point
in the life of uh of alitigation matter, is is
mediation, trying to reach aresolution.
It can happen before you file.
Um I've even resolved caseswhile the jury is out, you know,
(32:42):
that's pretty late.
Or sometimes even after you geta jury verdict, there can be,
you know, settlement discussionsand even mediation because
there's a broader context inwhich this one dispute sits.
Um, but from an in-houseperspective, how do you approach
mediation?
SPEAKER_00 (33:01):
So uh normally with mediation, I would go down and
speak with the general counsel.
Uh sometimes the nurse, the riskmanager nurse that's assigned to
the case will come as well andwe'll give some authority for
settlement based upon um youknow our reserves or what we
think the case, the value of thecase is.
And uh sometimes we don'tnormally share our um number
(33:27):
with our outside counsel or withanyone.
Um, but normally they kind ofknow if they've dealt with us
before, they kind of know therange of what we're looking to
sell the cases for, and we arealways present.
And one thing that we've starteddoing probably the last five or
six years is making sure,particularly in medical
malpractice cases, is makingsure the family is being heard
(33:49):
and they understand that we didnot anticipate the outcome.
We apologize for the outcome.
We did not want your loved one.
Whatever happened, it wasn'tanticipated.
Um but sometimes there areunanticipated outcomes which are
not necessarily below thestandard of care.
So to just hear that person andto make sure they realize that
(34:09):
we're a real hospital and youknow, we do a lot of great
things here.
That's a part that we've startedto put in our mediation, you
know, statements and our throughoutside counseling.
For if I go or if uh my generalcounsel goes or risk manager for
us to all introduce ourselvesand kind of go around the room
and let them know that, youknow, I know we're on opposite
(34:29):
sides of this issue, but this isnot what we want to happen to
your loved one, kind of thing.
And that goes a long way.
And sometimes with mediation, itgets us closer.
We may not resolve it that day,but we kind of know the range.
And, you know, a couple ofmonths later or maybe a couple
of weeks later, it's kind ofsoftened up things, and we can
(34:50):
go and take another bite andsometimes those go to
resolution.
SPEAKER_03 (34:54):
Yeah, that's an interesting point.
Um, also that you just made atthe end.
In the kind of cases that I umthat I manage, we we do often
have mediations.
Um, but I I find that they areoften a step in the process, and
even a case that mightultimately get resolved, maybe,
(35:18):
you know, in um shortly beforetrial.
Um the fact that we went throughmediation before, even though it
didn't resolve during themediation, actually laid
important groundwork um betweenthe parties to getting to an
ultimate resolution.
Um and you know, sometimes Ifind mediators, they really
(35:39):
wanna they want to put a notchon their belt.
I resolved this one.
But that's not always what we'reyou know looking for.
Of course we're looking toresolve the dispute, but we're
also realistic going into theday.
And um, if there's movement, ifthere's, you know, if there's
meaningful movement between theparties, sometimes that's as
(36:01):
much of a victory as you'regonna get that day.
And then you kind of, you know,everybody kind of goes back to
um their corners, as it were,and continue on with discovery
or or preparation for trial.
And it's just, you know, it'sit'll happen on a different day.
SPEAKER_00 (36:18):
And to kind of tie it up, it's kind of goes back to
what we originally startedtalking about, which is
pre-mediation.
You know, in a couple ofmediation cases, I've seen where
there's one in particular thatstands out in my mind that the
physicians were very communic,uh communicative with the
family.
They spoke to them every day,and then when an unanticipated
outcome happened, they stoppedspeaking to the family, avoid
(36:38):
the family.
And the family just basicallywanted to know what happened,
why you're not talking to me.
And sometimes you don't know.
And we tell our providers,sometimes you have to say, we
don't know what happened, butwe're looking at it and we're
gonna figure it out, we're gonnacome back to you.
But that avoidance really causedus some problems later on down
the road because the providersbehave differently to the family
(36:59):
and they could kind of feelsomething was wrong.
And and that pre-I guess notpre-litigation, but before the
dispute even happened, if thingshad gone differently, I'm pretty
sure the family might not haveeven pursued it if the doctor
had sat down and talked withthem.
SPEAKER_03 (37:14):
Because they would have felt differently about it.
SPEAKER_00 (37:16):
Heard, right, exactly.
SPEAKER_03 (37:18):
Yeah.
Well, this has been a greatconversation.
Um, really interesting to kindof hear the different
approaches.
So thank you.
SPEAKER_00 (37:29):
Well, I will I see you uh in New York next year.
That's where the meeting is,right?
SPEAKER_03 (37:34):
I plan to be there um at the in-house program in
New York for 2026.
How about you?
Will you be there?
SPEAKER_00 (37:41):
Uh if if my general counsel allows it, I'll be
there.
I think he will though.
He always encourages a greatprogram.
SPEAKER_03 (37:47):
Very good.
Well, I will see you there.
Hope uh the folks in theaudience uh get to go as well.
Thanks so much.
SPEAKER_00 (37:54):
Take care.
SPEAKER_03 (37:55):
You as well.
Bye-bye.
SPEAKER_02 (38:02):
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(38:25):
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SPEAKER_03 (00:17):
Hello.
Good morning, good afternoon,depending on when you're when
you're logging in.
Thank you to AHLA for havingD'Angelo and I here today.
We're going to talk aboutstrategic litigation and
healthcare disputes.
This session is based on ourpresentation at the 2025
(00:40):
In-house Council program in SanDiego.
So it's a follow-on to that.
And we're excited to be heretoday to continue this
conversation with you.
I'm going to toss it over toD'Angelo Norris, who is Senior
(01:02):
Associate General Counsel atGrady Memorial Hospital in
Atlanta, to introduce himselfand tell you a little bit about
himself as we get started.
D'Angelo?
SPEAKER_00 (01:12):
Sure.
Hi, Emma.
It's great to see you again, bythe way.
So as Amanda mentioned, I workat Grady Hospital in Atlanta,
which is one of the largesttrauma hospitals in the
Southeast.
And uh here we have uh plethoraof legal issues, everything from
(01:35):
um medical malpractice, premiseliability to um guardianships.
So I've been at Grady for 18years.
It's been a spin a ride.
I really have enjoyed it.
And I really enjoyed our sessionthat we had in San Diego.
And um I can't wait to get intosome of the conversation.
SPEAKER_03 (01:56):
Thank you.
Um yeah, great to see you againtoo.
Um that way, it was a nice umdiscussion we had in person in
San Diego.
I'll just introduce myselfbriefly and and then we'll kind
of dive into some of uh somesome questions and some
follow-up.
Um I'm a uh healthcare partnerat King and Spaulding in the the
(02:20):
Los Angeles office of of Kingand Spaulding.
My um healthcare practicefocuses on representing uh
providers, including hospitals,hospital systems, uh medical
groups, other types offacilities, ASCs, laboratories,
(02:41):
um, any type of provider in indisputes and primarily disputes
over reimbursement issues withhealth plans.
Um I've been with King andSpaulding since 2018.
Um before that, I was at uh an Iwas also practicing healthcare
law um at a at a VT firm.
(03:03):
So um lots lots of lots of funin healthcare.
Um just to kind of get usstarted, D'Angelo, can you tell
us uh what kind of litigationmatters, what kind of cases uh
do you manage uh in your role?
SPEAKER_00 (03:21):
Sure.
So yeah, I kind of touched on alittle bit in my introduction,
um, but I think that when youand I spoke in San Diego, it was
unique to see that you'reoutside counsel, I'm inside
counsel, so it's kind of abalancing act.
But some of the things that Ideal with is giving advice and
counsel to our executives, ourC-suite, um, managing the uh
(03:44):
employment issues that we havehere, uh, whether it's um EEOC
or alleged wrongful terminationsor um mass terminations, we also
deal with uh a lot of premiseliability, and we also manage
outside counsel when it comes toour major medical malpractice
(04:06):
lawsuits.
We work with a team of outsideattorneys to plan our defense
strategies and to coordinate theuh legal operations, and we work
um closely with our riskmanagement team, which is a part
of legal affairs umbrella hereat the hospital, as well as
compliance and internal audit.
That's the entire team thatfalls under the uh legal affairs
(04:29):
division.
SPEAKER_03 (04:31):
Wow, really the gamut.
A lot, a lot of differentthings.
Um a lot of different topics canend up on your desk.
Um, and in your role as as asin-house counsel um in dealing
with outside counsel, what aresome of the the best practices
(04:51):
you've seen from outside counselin terms of you know managing
your your high-stakeslitigation?
SPEAKER_00 (04:59):
Sure.
So I think one of the thingsthat I can think of that comes
to mind is a communicationpiece, which is making sure that
whoever you have on the outsideis communicating effectively
with you about filings, aboutprogresses in the case, about
the barriers that they may havedealing with people at the
(05:22):
organization.
Sometimes outside counsel willrun into barriers and they'll
just stop and not necessarilypick up the phone and call.
So communication is key.
And um, sometimes we've had, Ithink, issues where there's a
new person assigned to the caseby outside counsel, but they're
not appropriately introduced tothe inside council.
(05:44):
Um and sometimes that can beirritating or it can be
something an area ofimprovement.
Um I think the best, the bestoutside councils that I've seen
over my 18 years are the onesthat understand our mission.
We're a public hospital, we're ateaching hospital, which is
very, very unique.
(06:04):
It means that our staff, themajority of our staff, they
learn and they go out into theworld, and we have you know new
residents coming in all thetime, that they understand that
part, and that our ultimatemission is to provide health
care, regardless of a person'sability to pay.
Um, and that has to match upwith our litigation strategies
and our goals overall.
SPEAKER_03 (06:27):
Yeah, that that makes sense.
SPEAKER_00 (06:31):
You know, to kind of throw it back at you a little,
Amanda, what what do you thinkyou would like to see from
inside counsel sometimes thatyou don't see from outside
counsel?
What would be some bestpractices or areas that inside
counsel could probably benefitfrom if they knew about?
SPEAKER_03 (06:49):
That's a that's a great question.
It's a and it's a hard questionbecause as outside counsel, you
know, that that that's yourboss, right?
Yeah, your your in-house counselis is your boss, and your um,
you know, you you report tothem, and your job is really
because obviously your yourboss, your insight counsel, um,
(07:10):
who's managing um the litigationalso has someone that they
report to.
So I I think of, you know, myjob is to make them look good
and to um help help themaccomplish their goals um for
the organization um and withinthe organization.
(07:31):
But, you know, I would I justwholeheartedly agree the
communication is key.
I mean, that that's kind of thethe cornerstone um of a good
in-house and outside counselrelationship, um, keeping each
other informed.
Of course, the outside council,um important part of their role
(07:52):
is to keep in-house counsel andthe and the business folks and
through ever whatever channelsthe organization prefers abreast
of what's happening with thelitigation.
Um, but that communication alsogoes both ways.
So learning new things aboutwhat is happening uh within the
organization.
And you know, I I can an examplecomes to mind um a dispute.
(08:15):
Um I'm managing um against apayer on behalf of a client.
Um, I I didn't find out until itwas done and dusted that uh the
client and the payer who we werein litigation with um were
working on and signed andcompleted a contract.
(08:39):
Um it would have been reallygreat.
It's pretty important.
The terms of that contract hadimpact on the case.
And and we found out about itafter after it was already done.
So things like that, I think,are you know, it all kind of
goes back to communication andkeeping those lines of
(09:00):
communication open.
SPEAKER_00 (09:01):
If I could supplement my answer just a
little bit, something I thoughtof when you were talking is I
love when we have an outsidecouncil and it may send us some
advanced sheets or somethingthat we're working on.
They know that we have a problemin a particular area.
Like right now, we're looking ata lot of AI and thinking around
AI.
So we have councils that willknow, hey, Grady is looking to
form a new AI.
(09:21):
Send me an article or send mesome conference information.
Even though we may not thankthem every time they send it,
it's very important.
And we use that information, youknow, inside to say, hey,
Amanda's thinking about us,she's sending us about our
issues, and it goes a long way.
So I think it works both ways.
SPEAKER_03 (09:43):
Yeah.
That's that's really good tohear because sometimes you feel
like you're sending stuff to toclients and you don't know if
it's useful to them or notbecause they don't necessarily
respond back either.
But it is good to know that itis often being used, even if
there's not a you know a reply.
SPEAKER_00 (09:59):
Yeah.
SPEAKER_03 (10:02):
Um of the things that we talked about um in San
Diego, and um I I I always youknow find is an important part
of um kind of setting the tablefor for litigation is the
pre-dispute practices.
And we talked a little bit aboutthis.
Um what strategies have youfound effective in managing
(10:29):
disputes, um, particularly onthe front end and the when
you're in the pre-disputeposture that can help you be
successful as the dispute goeson, or or maybe even get it
resolved before it actually goesto court.
SPEAKER_00 (10:46):
Well, one of the things I've learned over time is
um to meet with yourstakeholders internally first,
like to kind of get a layer ofthe land because sometimes there
are unrealistic expectations orthat maybe just
misinterpretations of what'shappening in the dispute.
So try to figure out number one,who are the parties involved
(11:06):
internally before we even reachout to outside counsel or before
we reach out to the opposingparty or the, you know, first
figure out who's involved.
And the second thing I try to dois to uh figure out the
expectations.
I mean, what are we trying todo?
What are we trying toaccomplish, you know, like any
good attorney should do, is sitdown and talk through those
(11:28):
things before uh reaching outand to see obviously if we have
anything in common.
Have we been working togetherbefore in other relationships?
Are there other synergies we canwork off of to help to resolve
this dispute?
And we also have an internalthat's in legal affairs, an
internal risk management team.
(11:49):
And a lot of times they haveinformation in their systems, in
their tracking systems abouttrends, about other things that
may be relevant to helping youto come to a resolution.
It could be a similar disputethat has already been settled uh
with someone else or in anothersituation.
I always try to get thatinformation up front before and
kind of have a game plan beforeI reach out.
(12:11):
Um, and also one other thing Iadd before I close is that
sometimes knowing who toapproach in the on the other
side or who has kind of pushedthis dispute to the point of
we're going to court, we'regonna fight this, we're gonna
sue you guys, and there may besome soft spots in that area
where you can make progress thatsomeone else hasn't really um is
(12:34):
fertile ground for resolutionsometimes.
SPEAKER_03 (12:38):
Yeah, and and you probably won't be able to find
that out unless you areconnecting with your internal
stakeholders because those arethe people who know who the
people are likely on the otherside, right?
That they may be in the bestposition to know who's kind of
driving um the the um thedispute from a party perspective
on the other side.
(12:58):
So that might give you anopportunity to reach out and see
if there's some way to resolveit before it goes goes to the
next step.
SPEAKER_00 (13:06):
Um yeah, it's it's kind of like you know, what you
learned in law school, you know,the meaning of the mind.
So at some point in thisrelationship, we had a mutually
beneficial relationship.
We thought that we were greatpartners, you know, you were the
fit and we were working thingsout appropriately, and now
something's come up, andsometimes it's not what you
(13:27):
think it is.
It may not be as simple as alegal answer, it may be
something softer or somethingthat's more personal that you
have to kind of weed out andfigure out how to reconnect
these partners that werepartners for a very long time.
Whether it's, hey, we need toget rid of this person and get a
new person or maybe some hardconversations, but sometimes
those things have to happen toprogress to the next stage.
SPEAKER_03 (13:51):
Yeah, I I often find that um that that's exactly
right.
There are are you know, thebusiness is run by people and um
there are personalities alwaysinvolved at at different levels
of a dispute.
And so kind of figuring outwho's who whose motivations are
(14:11):
where, what you know, whatpeople care about and what what
people um what's kind of drivingtheir decision making can help
you potentially find aresolution.
Um we talked about contractingwhen it comes to disputes, and
we talked about this in SanDiego as well, and how to
(14:32):
effectively use contracts um tohelp um manage disputes on the
front end.
What what are your thoughtsabout you know approaching
contracting to and and how thatinterplays with dispute
management?
SPEAKER_00 (14:49):
So a couple of things that I think about when I
think about this area is one Ifeel that if you have a lot of
terms and contracts that arejust really hyper-specific, it
can sometimes cause problemsthat are not anticipated when
you write the contract.
So I think that contracts, allcontracts need to have room to
(15:11):
breathe, although it doesn'tnecessarily have to be just an
open contract, so anything canhappen.
I've found that determiningwhere those areas where the
parties can agree to be flexibleare important up front, one,
two, we've used uh terms andcontracts that have been very
(15:31):
effective in the past, termssuch as requiring the leaders of
both organizations to meet priorto any type of even arbitration,
mediation, or lawsuits beingfiled to have them sit down.
And that has surprisingly, wellprobably not surprisingly, still
allowed the speech, you know,just the CEOs of both companies
(15:52):
talking and figuring out whetherit's mutual uh understanding.
We've even used in someagreements, contracts,
agreements where we can't decideon the uh choice of law, we've
used the term that it will be inthe state of the non-moving
party.
So if I sued you, Amanda, I haveto come to your home turf.
(16:14):
And if you sued me, you have tocome to Georgia.
So that kind of puts a littleputs a little rope up, if it's
not a serious, serious thingthat needs to go to court.
So those have been effective.
Uh, what about from outsidecounsel?
Um, how do you view when youlook at contracts that are in
dispute, how do you view umthose as far as resolution and
(16:35):
and and ways to get to aresolution easier?
SPEAKER_03 (16:39):
Yeah, you know what something that you said really
resonated with me about how ifthere are too many um too many
very complicated pre-disputeprocedures, it can actually get
in the way um or make things,you know, present a kind of
unanticipated um challenges, butat the same time, you know,
(17:02):
requiring things like you know,a meeting of the stakeholders of
you know, high-level executivesat the company actually meeting
to discuss the dispute, becausesometimes when those people get
in a room, they can figure out aresolution that maybe the the
rest of their teams were didnot, you know, um did not take
(17:23):
advantage of.
Um but I but you know, I I oftendo um feel like the dispute
resolution provisions arethey're not um they're not the
focus of the business peoplewhen they're making these
contracts.
They're focused on the businessterms, they're focused on, you
(17:45):
know, the the the money umwithin the contract, but these
dispute resolution provisionscan actually have a really big
impact on the litigation itselfin you know a few different
ways, sort of just at theoutset.
Do they require arbitration ordo they allow the parties to go
to court?
(18:06):
That can have a big impactbecause sometimes, um, depending
on the nature of the dispute,one party or the other may
really not want the publicity.
And they would really rather itbe an arbitration.
So they're not, you know,necessarily going to be getting
news coverage over that dispute.
That works on both sides becausethe one side that may know that
(18:29):
the other side doesn't want thepublicity has that leverage now
to say, you know, I can takethis to open court, there's no
arbitration provision, and thatand that can actually have a
have a significant impact.
SPEAKER_00 (18:40):
Um I've also found, Amanda, that sometimes the
disputes that I've dealt with incontracts, it comes down to the
person that's trying to sellthis business to the hospital
saying one thing, and maybe thelegal team or the team that
wrote the contract is not reallyas involved in that conversation
because obviously the personthat's here wants to make a
(19:01):
sale.
That motivation is a littledifferent than the people that
really wrote the contract andthey understand the legal um
barriers to what the businessperson is trying to do.
So you have to figure that partout first.
Even sometimes we get contracts,and the legal team to edit the
contract is not even on the youknow the document.
(19:21):
You know, we have to find outwho's your legal team.
We don't want to talk to theperson who sold this contract,
we want to talk to the personwho wrote the contract, who's
gonna be responsible for thelegal terms of the contract.
SPEAKER_03 (19:31):
Right.
That may that makes a lot ofsense.
And then also, you know,depending on the contract, some
contracts don't say anything inthe dispute resolution terms
about discovery.
And then other contracts arevery prescriptive about exactly
what discovery can be done andwhat can't be done.
Um, some will just refer to if,you know, if if if it's going to
(19:55):
be a triple A arbitration, theAAA rules or or um Jams rules,
something like that.
Um but I find that's that oftenthe the contracts with very
prescriptive discovery rules cancan cause challenges in the
litigation if your discoveryneeds are different from from
(20:18):
what may have been contemplatedat the time that the contract
was entered into.
SPEAKER_00 (20:22):
And also we're we have a we're against a lot of um
the evergreen terms because alot of times people change and
the organization changes.
So if you have these contractsthat just continue on into
perpetuity, you don't reallyhave a chance.
Even if you're gonna go backwith the same contract, it still
is a good idea to put some kindof a provision that allows it to
(20:43):
be renegotiated in terms to beupdated.
Um I think it makes it cleareras opposed to doing these
one-page amendments to continuea contract for 15 and 20 years
without looking at regulationsand compliance, things that have
changed over the course of those15 years.
SPEAKER_03 (21:01):
So sometimes we see some really old paper, right?
Really old paper that's justbeen evergreened and and you
know, tinkered with from time totime, but but really out of date
uh dispute resolution umprovisions.
And then an another, I would sayanother piece that often trips
(21:21):
people up and they're becausethey're not thinking about it,
um, necessarily being in thedispute resolution provision,
but time bar terms.
SPEAKER_01 (21:31):
That's right.
SPEAKER_03 (21:32):
Um those as opposed to just you know state law
applying, if the parties can umcontract for specific time bar
provisions.
And sometimes I've seen them bereally, really short and the and
no one's expecting it.
And you know, the client comesto us with like, hey, we have
(21:52):
this this dispute, um, great,and then we get into the dispute
resolution terms and there's asix-month time bar.
That's a problem.
Um, yeah.
So and and sometimes the clientjust doesn't look there for that
type of provision and doesn'tnecessarily know know that
(22:14):
that's that that's there.
So there's sneaky things indispute resolution provisions,
and and it's it's really um oneof the first places I look in a
contract as I get a contractfrom a client and start
analyzing it.
It's one of the first places Igo because I'm like, okay,
what's the rules of the roadhere that we're dealing with so
that I can advise the client onkind of process um and and what
(22:39):
our options are.
SPEAKER_00 (22:41):
That's good.
That's good practice.
SPEAKER_03 (22:44):
Um yeah, go ahead.
SPEAKER_00 (22:46):
I was gonna say, so to transition uh a little bit
about um going to trial.
You want to talk a little bitabout that, maybe?
SPEAKER_03 (22:53):
Yeah.
Um yeah, if you've made it allthe way through discovery and
and and maybe uh a mediation andthings still haven't gotten
worked out, um you're you'regoing to trial or going to
arbitration.
Um you know when when andactually our our team um goes to
(23:16):
trial and arbitration a fairamount.
I'll be in a jury trial all ofNovember and um and then I then
I'm off to another state for uharbitration most of December.
So um we actually go a fairamount, but a lot of clients
don't go um very often.
And so I think it's important tospend a lot of time um leading
(23:39):
up to trial with with yourin-house counsel, of course, but
a lot of time with yourwitnesses, particularly if your
witnesses are coming from insidethe organization, because you
know, as you spoke at the top toyour mission, um hospitals are
mission-driven organizations andand employees are focused on
(24:00):
delivering that mission,delivering health care to their
communities.
And a trial is very distracting,is it's not what they want to be
doing.
So, you know, I I the the thecare and and handling of the
witnesses, particularly ifpeople are gonna need to be
coming from the hospital to totestify, it's really important
(24:21):
to kind of warm people up toit's okay, it's not the end of
the world, it's not that scary.
These are just, you know,arbitrators or jurors and and
they want to know what you haveto say.
And spending a lot of timepreparing everyone goes a long
way, I think, to to kind ofthese nerves.
SPEAKER_00 (24:42):
Right, I agree with that.
And with the witness prep, wetry to have our witness prep
here at the hospital so itdoesn't um it's not too
inconvenient for the providersto come down to our office to do
the witness prep and to actuallybe there for them because you're
right, they panic.
I mean, you know, as a teachinghospital, people are gone maybe
in the two years when somethingcomes up and they're calling
(25:03):
back.
I have filling out a newapplication, you know, at a new
hospital, and they're asking meabout being in lawsuits.
Have I been sued?
You know, what's happening?
What should I put on this as aresponse?
So they're really nervous.
You know, the providers are verynervous about being named.
But what we try to explain tothem is very rarely is it one
(25:23):
person that did one thing thatcaused any bad result?
Um, and sometimes we have to sitdown and have your piece to
appropriately defend you and theother parties involved.
Um, and let sit down and pullout your piece, parse out what
you did or what you didn't do,and talk about it and let us
know, you know, why you did whatyou did.
SPEAKER_03 (25:44):
Yeah.
From from an inside counselperspective, what are yeah, you
know, what are your expectationsof outside counsel um when
you're going to trial?
SPEAKER_00 (25:57):
I expect um the outside counsel to first of all,
um, if they're going to bereaching out to witnesses or
talking to someone at thehospital, to at least have an
inside attorney involved in thatfirst conversation with that
person so that we can make surethey're comfortable speaking
with you and they know thatyou're an appropriate party to
(26:18):
speak with, um, to kind of setto tee it up and it sets the
tone for the relationship.
That's the first thing I wouldsay.
I also expect outside counsel towe have um occurrence analysis
or updates that we need on thecase prior to the you know
trial, prior to mediation, priorarbitration.
I expect those to be updated.
(26:40):
So the posture of the of thetrial if it's changed any as far
as our likelihood of success, weneed to know that.
Um if if something is you knowhasn't been discovered yet, but
it may turn the case, it may bejust positive of what the issue
is.
I want to know that too.
Um, and it's important thatoutside counsel realizes that we
(27:05):
um obviously are here for our umdefense of our position, but we
also are here to protect our uhwitnesses who are employees.
So, you know, in depositions wedon't like to see our employees
getting beat up or treatedunfairly.
We expect you to advocate forthem as well as the hospital,
(27:27):
but to not throw out people tothe wall and to understand that,
like you said previously, thatwe are a hospital, and our main
thing is to make sure peoplehave uh patient care, health
care, um, and it's appropriateand it's not in the world or the
the field of litigation orlawsuits as far into a lot of
(27:48):
people.
You know.
SPEAKER_03 (27:49):
Yeah.
Yeah, all all of that um reallyresonates um with me.
And I I I find, you know, as youmentioned, um if you're
communicating with outsidecounsel, communicating with a
witness, for example, makingsure to go through in-house
counsel at least at thebeginning, um that's that's
(28:13):
really important because youknow, if you're talking to a
nurse or a doctor or anyoneelse, someone who works in
finance or managed care, theyneed to know from their internal
people that this is I can talkto this attorney and this is
this is okay, and I'm not, youknow, stepping out of line here
or in or in trouble or anythinglike that, because sometimes um
(28:37):
it's scary to hear from anattorney if you're you know just
someone doing your job and um itit's it it goes a long way to
have that warm connectionbetween the in-house counsel and
outside counsel and the andmaybe a potential witness or or
something like that.
I completely, completely agreewith that.
(28:59):
Um in terms of um experts, howdo you typically like to handle
expert witnesses?
We talked a little bit aboutthis um before, um, and your
expert needs maybe in in thekinds of cases you manage, maybe
a little bit different from thekinds of experts that that I use
(29:19):
in in my cases, but you know,how do you how do you approach
working with outside counsel toidentify experts?
SPEAKER_00 (29:26):
So most times when we have the cases to kind of
narrow down to medicalmalpractice cases, we will have
our outside councils to give usan a range of experts, or
sometimes we'll even look atexperts we've used before that
have been uh successful for usor we feel successful.
(29:47):
And we'll normally choose basedupon the CD or based upon the
reputation of the expert withthe outside counsel, but we
normally allow our outsidecounsel to present us with that
first list, and as we weretalking.
Them before at the hospital, thetype of hospital I work at, we
do have people that are expertsin the field, but we we never
use them in our own cases.
(30:08):
But we do go over some of thedetails of cases so that we can
get some of the blind spots thateven the experts that we hire
might have missed.
Um, to kind of give theattorneys outside of attorneys a
um we present before the boardin a legal uh forum and this
confidential meeting where theattorneys love it because they
(30:29):
can get feedback from all thesepeople that deal with the exact
same types of issues every day,and they can point out things
that you know even our attorneyshaven't thought about before
because they deal with thosethings.
So there's kind of an internalexpert review that helps to
shore up the case.
SPEAKER_03 (30:45):
Yeah, that that's that's that's great.
That sort of connection and andworking between outside and
in-house counsel really closelyand selecting the experts, I I
find um is also sort of a bestpractice because sometimes
you're at from an outsidecounsel's perspective, your your
(31:07):
in-house folks, your in-housecontacts, they often have um,
you know, either they may have,you know, a really good idea in
terms of an expert, or um, ifyou have a good idea in terms of
of an expert that you want themto consider, there may still
need to be some internal bettingof that person and you know,
(31:29):
kind of discussions um beforeproceeding.
SPEAKER_00 (31:33):
Um also amazingly effective when we do those um
those meetings to identifytrends.
I mean, a lot of times we kindof bring cases that are
similarly situated, if it's alluh EMS cases or maybe a lot of
mother baby cases or whatevertype of cases, then we can see,
oh, I see what's happening that,or the experts in the room can
(31:56):
identify some of thedeficiencies to help us to give
a better product out.
You know, maybe there's anotherform we need to do, maybe
there's another step in theprocess.
SPEAKER_01 (32:04):
Right.
SPEAKER_00 (32:05):
That, or maybe that's this is a trend overall,
you know, that this is happeningeverywhere, and they would know
that more than we would, andthey um share that information.
It helps a lot with the cases.
SPEAKER_03 (32:17):
Yeah.
SPEAKER_00 (32:18):
Yeah.
SPEAKER_03 (32:19):
Um last topic um that I thought it'd be
interesting to get yourperspective on.
Um, and this is something thatcan happen sort of at any point
in the life of uh of alitigation matter, is is
mediation, trying to reach aresolution.
It can happen before you file.
Um I've even resolved caseswhile the jury is out, you know,
(32:42):
that's pretty late.
Or sometimes even after you geta jury verdict, there can be,
you know, settlement discussionsand even mediation because
there's a broader context inwhich this one dispute sits.
Um, but from an in-houseperspective, how do you approach
mediation?
SPEAKER_00 (33:01):
So uh normally with mediation, I would go down and
speak with the general counsel.
Uh sometimes the nurse, the riskmanager nurse that's assigned to
the case will come as well andwe'll give some authority for
settlement based upon um youknow our reserves or what we
think the case, the value of thecase is.
And uh sometimes we don'tnormally share our um number
(33:27):
with our outside counsel or withanyone.
Um, but normally they kind ofknow if they've dealt with us
before, they kind of know therange of what we're looking to
sell the cases for, and we arealways present.
And one thing that we've starteddoing probably the last five or
six years is making sure,particularly in medical
malpractice cases, is makingsure the family is being heard
(33:49):
and they understand that we didnot anticipate the outcome.
We apologize for the outcome.
We did not want your loved one.
Whatever happened, it wasn'tanticipated.
Um but sometimes there areunanticipated outcomes which are
not necessarily below thestandard of care.
So to just hear that person andto make sure they realize that
(34:09):
we're a real hospital and youknow, we do a lot of great
things here.
That's a part that we've startedto put in our mediation, you
know, statements and our throughoutside counseling.
For if I go or if uh my generalcounsel goes or risk manager for
us to all introduce ourselvesand kind of go around the room
and let them know that, youknow, I know we're on opposite
(34:29):
sides of this issue, but this isnot what we want to happen to
your loved one, kind of thing.
And that goes a long way.
And sometimes with mediation, itgets us closer.
We may not resolve it that day,but we kind of know the range.
And, you know, a couple ofmonths later or maybe a couple
of weeks later, it's kind ofsoftened up things, and we can
(34:50):
go and take another bite andsometimes those go to
resolution.
SPEAKER_03 (34:54):
Yeah, that's an interesting point.
Um, also that you just made atthe end.
In the kind of cases that I umthat I manage, we we do often
have mediations.
Um, but I I find that they areoften a step in the process, and
even a case that mightultimately get resolved, maybe,
(35:18):
you know, in um shortly beforetrial.
Um the fact that we went throughmediation before, even though it
didn't resolve during themediation, actually laid
important groundwork um betweenthe parties to getting to an
ultimate resolution.
Um and you know, sometimes Ifind mediators, they really
(35:39):
wanna they want to put a notchon their belt.
I resolved this one.
But that's not always what we'reyou know looking for.
Of course we're looking toresolve the dispute, but we're
also realistic going into theday.
And um, if there's movement, ifthere's, you know, if there's
meaningful movement between theparties, sometimes that's as
(36:01):
much of a victory as you'regonna get that day.
And then you kind of, you know,everybody kind of goes back to
um their corners, as it were,and continue on with discovery
or or preparation for trial.
And it's just, you know, it'sit'll happen on a different day.
SPEAKER_00 (36:18):
And to kind of tie it up, it's kind of goes back to
what we originally startedtalking about, which is
pre-mediation.
You know, in a couple ofmediation cases, I've seen where
there's one in particular thatstands out in my mind that the
physicians were very communic,uh communicative with the
family.
They spoke to them every day,and then when an unanticipated
outcome happened, they stoppedspeaking to the family, avoid
(36:38):
the family.
And the family just basicallywanted to know what happened,
why you're not talking to me.
And sometimes you don't know.
And we tell our providers,sometimes you have to say, we
don't know what happened, butwe're looking at it and we're
gonna figure it out, we're gonnacome back to you.
But that avoidance really causedus some problems later on down
the road because the providersbehave differently to the family
(36:59):
and they could kind of feelsomething was wrong.
And and that pre-I guess notpre-litigation, but before the
dispute even happened, if thingshad gone differently, I'm pretty
sure the family might not haveeven pursued it if the doctor
had sat down and talked withthem.
SPEAKER_03 (37:14):
Because they would have felt differently about it.
SPEAKER_00 (37:16):
Heard, right, exactly.
SPEAKER_03 (37:18):
Yeah.
Well, this has been a greatconversation.
Um, really interesting to kindof hear the different
approaches.
So thank you.
SPEAKER_00 (37:29):
Well, I will I see you uh in New York next year.
That's where the meeting is,right?
SPEAKER_03 (37:34):
I plan to be there um at the in-house program in
New York for 2026.
How about you?
Will you be there?
SPEAKER_00 (37:41):
Uh if if my general counsel allows it, I'll be
there.
I think he will though.
He always encourages a greatprogram.
SPEAKER_03 (37:47):
Very good.
Well, I will see you there.
Hope uh the folks in theaudience uh get to go as well.
Thanks so much.
SPEAKER_00 (37:54):
Take care.
SPEAKER_03 (37:55):
You as well.
Bye-bye.
SPEAKER_02 (38:02):
If you enjoyed this episode, be sure to subscribe to
AHLA Speaking of Health Lawwherever you get your podcasts.
For more information about AHLAand the educational resources
available to the health lawcommunity, visit American Health
Law.org and stay updated onbreaking healthcare industry
news from the major mediaoutlets with AHLA's Health Law
Daily Podcast, exclusively forAHLA comprehensive members.
(38:25):
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