By: Michael V. Nakamura, Co-Chair, Medical Malpractice and Personal Injury Dept.
For the past twenty-four months, the COVID pandemic has affected every aspect of our lives. Every day, I review and discuss cases with clients in the areas of personal injury, which includes auto, motorcycle, trucking, bicycle and other types of transportation related accidents, dog bites, premises liability (slip and fall), sexual abuse and medical malpractice, which includes birth injury, surgical errors, delays and misdiagnoses of many conditions and tragic wrongful death cases.
As part of the review process and our representation, we have found it helpful to set expectations for our existing and potential clients – by explaining how the pandemic has impacted how we can successfully represent them.
In short, COVID has slowed the legal process, both before a lawsuit begins and after the lawsuit has been filed. The courts were closed for a significant period of time and have then cautiously reopened. Omicron then reversed the process, causing further delay. The courts are now open and functioning, but still working through a backlog of cases. Criminal and emergency matters are the first priority given due process rights, and exigent circumstances in certain types of cases, such as custody matters.
For safety reasons, many proceedings have been handled remotely via Zoom or telephone conference, instead of in-person. This will continue in some proceedings, while personal appearance will be required in others. There are advantages and disadvantages, a word on these later.
With specific regard to personal injury and medical malpractices cases, many clients wonder if these changes lead to faster and easier settlements, asking, “Don’t the insurance companies want these cases off their books, instead of hanging around for years?”
In my observation over the past two years, not really. Clear liability catastrophic injury and wrongful death cases do not seem to have slowed appreciably. With regard to smaller-damage personal injury cases, such as auto collisions involving injuries that resolve with physical therapy and other shorter-term treatment, I have noted that the insurance carriers have been slow in their attempts to settle these cases, for a variety of reasons. Given that most companies furloughed workers due to the pandemic, many claims adjusters are handling double and triple workloads, which slows the evaluation process prior to a lawsuit. In addition, it seems that many carriers recognize that the courts are backlogged so, rather than settle earlier in the process, they have decided to dig in, which has essentially pushed many of our clients to file lawsuits over these clear liability cases. This, then, results in further delay since the only option for our clients is to proceed to trial, albeit many months later.
At this point, the delays are quite long. For instance, our Firm filed an auto collision case in January, 2021. Eight months later, the court had not yet issued the Writ of Summons to serve on the defendant driver. A call to the clerk’s office revealed that they were currently scheduling cases that were filed over a year earlier. In addition, many pending cases were postponed, with jury trials set well into 2023.
In terms of advantages and disadvantages, certain efficiencies have developed. In smaller cases, Zoom trials mean no travel to the courthouse on the day of trial, and no waiting for a judge to be assigned. In larger cases, Zoom depositions of witnesses and experts have eliminated the need to travel to depose out-of-state parties. I recently took the deposition of a surgeon in Seattle, Washington via Zoom, and was able to save time and money because I did not have to fly cross-country, stay in a hotel or rent a car. The remote deposition also eliminates confusion with location, court reporting agencies and other snafus that can occur with out of state in-person proceedings.
COVID has changed other aspects of cases as well; injured parties were – and some still are – either unwilling or unable to receive medical treatment in-person due to individual concerns over COVID exposure, or because the physicians, physical therapists and other treating health care providers are only providing telehealth visits. Obtaining an appointment itself is challenging, so the combination of delays in treatment and lack of in-person evaluation can lead to the opposition challenging the authenticity and/or necessity of the medical treatment later. Also, with regard to the evaluation of automobile damage and repairs, some adjusters are relying completely on photographs and repair estimates rather than in-person inspection of damaged vehicles after a severe collision.
Depending on the courthouse, remote cross-examination of an adverse party or hostile witness is a mixed bag. The lawyer is not there to confront the witness face-to-face, so that a mistaken or lying witness has a certain security blanket to keep testifying in a misleading way. On the other hand, the judge, the jury and the litigants can clearly see facial expressions on a video and read the body language of the witness.
There are new rules which have evolved and are subject to change as the pandemic ebbs and flows. Some courts may impose mandatory mask and vaccination rules for in-person proceedings. For example, on a conference call a few months ago concerning a failure to diagnose cancer case in Baltimore, our Federal court trial judge stated that the current court rules mandate full vaccination on the part of all counsel, witnesses and jurors. Any potential jurors who are unvaccinated would be excluded. In addition, even though this case has been in litigation for almost two years already, the trial date was set for the Fall of 2022, over a year from the previously set trial.
In conclusion, the impact of the pandemic has been significant, and the courts and lawyers have had to navigate the hurdles on an ongoing and ever-changing basis. While the topics discussed here constitute a general overview based on my experience and observations over the past two years, every case is different. Whether the pandemic affects the handling or the course of a particular case depends on the type of case, its strengths and weaknesses and the jurisdiction.
For a free consultation to discuss your case, please contact Mike directly at email@example.com, or 301-230-5255.
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