Bridging the Gap in Risk Management and Patient Safety

August 18-21, 2020

Corporate Representative Depositions: The Trend. Protecting the Hospital. Has it Become Abusive?

Paula J. Lozano is a Shareholder and trial attorney in the law firm Walters Levine Lozano & DeGravewhere she defends Florida hospitals, physicians of all specialties, nurses, advanced practitioners, andphysician assistants. She also has 17 dedicated and specialized years of experience defending birthrelated injury cases. Ms. Lozano represents clients all over the state with the majority in the centraland West Coast of Florida down to Naples.

Ms. Lozano leads the firm’s Medical Malpractice Defense Department having focused the last 17 yearsof professional practice in Texas and Florida as a medical malpractice litigation and trial attorney. Shehas taken various cases to trial, including wrong level surgeries, nerve damage resulting from blooddonation, failure to diagnose stroke, birth related injuries, and catastrophic brain injuries. Sheregularly participates in speaking engagements relative to medical malpractice “hot topics” androutinely performs in-service training for hospitals around the state.

Ms. Lozano was honored by Super Lawyers Magazine as a Rising Star between 2012-2016. She wasrecognized by the Attorney At Law Magazine as an “Attorney to Watch in 2012” and featured in SRQMagazine in 2018 for her legal accomplishments. She is a member of the High Stakes Litigatorsorganization that recognizes elite members of the bar handling multi-million dollar cases.

Walters Levine Lozano & DeGrave remains a proud sponsor and presenter for FSFRMPS. Feel free tocontact Ms. Lozano at plozano@walterslevine.com or directly on her cell phone at 813-340-2952.

Presentation Goals

1. Understand the Trend

2. Identify Hospital Corporate Representatives

3. Identify Potential Protections

4. Understand How to Prepare

3. Identify Potential Protections

Florida Rule of Civil Procedure 1.280(1)

Parties may obtain discovery regarding any matter, notprivileged, that is relevant to the subject matter of the pendingaction, whether it relates to the claim or defense of the partyseeking discovery or the claim or defense of any other party,including the existence, description, nature, custody, condition,and location of any books, documents, or other tangible thingsand the identity and location of persons having knowledge of anydiscoverable matter. It is not ground for objection that theinformation sought will be inadmissible at the trial if theinformation sought appears reasonably calculated to lead to thediscovery of admissible evidence.

Florida Rule Civil Procedure 1.310 (b)(6)

Plaintiff ’s Deposition Notice:

(1) Name a public or private corporation, a partnership orassociation, or a governmental agency to be deposed, and

(2) Designate with reasonable particularity the matters on whichexamination is requested.

Florida Rule Civil Procedure 1.310 (b)(6)

Burden Shifts to Hospital to Designate the Appropriate Person

The organization so named must designate one or more officers, directors, or managingagents, or other persons who consent to do so, to testify on its behalf and may state thematters on which each person designated will testify. The persons so designated musttestify about matters known or reasonably available to the organization.

This Burden Shift Acts as Both a Shield and Sword

Current Corporate Representative Deposition Trend in Medical Malpractice

Agency Claims – Most Typical NoticeSchedule “A” Topics of Inquiry 1. Florida Health Sciences Center, Inc., d/b/a Tampa General Hospital’s Medical Staff Bylaws in effect in

December 2015 (attached as Exhibit “A”), particularly Appendix A and the portions therein that relate to

certified nurse midwives.

2. The rules and regulations in place at Tampa General Hospital between December 30-31, 2015.

3. The requirements regarding Michelle Grinnell, CNM was required to wear while seeing patients at Tampa

General Hospital, including Hennessy Diaz Pedraza, between December 30, 2015 and December 31, 2015.

This is to include any requirements of wearing any Tampa General Hospital insignia, badges, coats,

paraphernalia or the like on identification badges, scrubs, white coats, or other apparel.

4. The issuance of identification badges to medical providers at Tampa General Hospital during the time

period in which Michelle Grinnell was issued her identification badge, including the time period in which Ms.

Grinnell was issued the badges attached as Exhibit “C” and Exhibit “D”, and the choice regarding which

title to utilize on the medical provider’s identification badge.

5. The granting, maintenance, and/or review of privileges to practice midwifery care and treat patients at

Florida Health Sciences Center, Inc., d/b/a Tampa General Hospital in effect between 2014 and 2015.

6. The Collaborative Practice Agreement in effect for Michelle Grinnell, CNM to treat patients at Tampa

General Hospital on December 30-31, 2015, which was required by the Tampa General Hospital Medical Staff

Bylaws.

7. The Collaborative Practice Agreement in effect for Michelle Grinnell, CNM to treat patients at Tampa

General Hospital on December 30-31, 2015, which was required by the Tampa General Hospital Medical Staff

Bylaws.

❑ Bylaws

❑ Rules & Regulations

❑ Badges/Scrubs/Insignia

❑ Privileges – Revocation

❑ Collaborative Practice

Agreements

❑ Employment

Agreements

Case Specific – Multiple Topics Designed to Get Multiple People Or Highest Ranking Member

Schedule “A” Topics of Inquiry

1. The consent form titled “Authorization for Routine Diagnostic Procedures and Medical Treatment” in effect

between November and December of 2015.

2. The purpose and/or intent of the language of the consent form titled “Authorization for Routine Diagnostic

Procedures and Medical Treatment” in effect between November and December of 2015, including, without

limitation, the language of sections II and III.

3. The relationship between Florida Health Sciences Center, Inc., d/b/a Tampa General Hospital and Tampa

Family Health Centers.

4. Any and all marketing materials, pamphlets, handouts, information booklets, or other printed documents

intended to be provided to pregnant patients that Tampa General Hospital furnished to Tampa Family Health

Centers between January 1, 2015 and December 31, 2015.

5. Any and all Tampa General Hospital advertising and marketing materials in circulation between January 1,

2015 and December 31, 2015, to include radio, print, internet, television, billboard, paper, pamphlet or other

form of advertising.

6. Any and all Tampa General Hospital advertising and marketing materials related to its labor and delivery

department in circulation between January 1, 2015 and December 31, 2015, to include radio, print, internet,

television, billboard, paper, pamphlet or other form of advertising.

❑ Consent Forms

❑ Contracts/Joint

Ventures/Relationships

❑ Marketing/Advertising

❑ Incident Reports/Root

Cause Analysis

❑ Budget/Cost Analysis

Hospital Corp Rep “Hot Topics”

• Marketing (website, brochures, and advertising)

• Contracts

• Medical Staff (bylaws, rules and regulations)

• Consent Forms

• Education and Training

• Supervision and oversight of hospital programs/departments

• Policies and Procedures

• Safety Standards/Compliance

• IT (audit trails, EHR software)

What Prompted this Trend?

• 2012 Jacksonville $178 M Verdict: The hospital advertised bariatricaccreditation, through pamphlets and ads. The accreditation required atleast 50 surgeries and 20 hours of CME. Hospital’s president testified thesurgeon performed at most 21 bariatric surgeries. Surgeon attended oneCME.

• Orders Across the State Compelling Corp Rep Depositions

• Audit Trails Identifying Fraudulent/Untrustworthy Documentation

• Plaintiff ’s Bar Elite Group Conference Call➢When One Hits Big, the Others Use the Same Play Book

➢Who is on that call?

➢Chris Searcy, Tom Edwards, W.C. Gentry, Mike Trentalange, Steve Yerrid, et al

Plaintiff ’s Purpose & Goals

• Bind the hospital

• Demonstrate hospital notice

• Demonstrate systemic failures

• Obtain the purpose for hospital decisions or policies

• Demonstrate lack of knowledge

• Obtain conflicting testimony between witnesses

What Protections Are Available?

The Deposition Notice

• Is the deposition notice specific enough?

• Reasonable particularity?

• Can we identify a representative based on the notice?

• How do we protect corporate officers, VPs, etc.?

The APEX Doctrine• Beginning in the 1980s, as corporations grew, Courts expanded discovery protections for high-

level corporate officials. The “apex doctrine” was created to shield corporate officers from

attending countless corporate representative depositions on issues for which the corporate

officer had no personal knowledge. Corporate officers are protected from being deposed unless

(1) the executive has unique or special knowledge of the facts at issue and (2) other less

burdensome avenues for obtaining the information have been exhausted. See Mulvey v.Chrysler Corp., 106 F.R.D. 364, 366 (D.R.I. 1985).

• Since the federal adoption of the apex doctrine, some state courts have incorporated the apex

doctrine in their own rules of civil procedure. (Texas and California in full. Others in part.)

• Florida has not expressly adopted the apex doctrine for corporations. Florida has limited the

doctrine to “high-ranking government officials.” Home of Sch. Bd. of Miami-Dade County, 901

So. 2d 238, 241 (Fla. 1st DCA 2005).

• However, the issue is currently on appeal with the Florida Supreme Court.

APEX Doctrine: Florida Supreme Court

• In Suzuki Motor Corporation v. Winckler, 284 So. 3d 1007 (Fla. 1st DCA2019), the plaintiff sought to depose 90-year-old Osamu Suzuki, theChairman of Suzuki Motor Corporation. The case arose over a motorcycleaccident from alleged defective brakes. Plaintiff sought to depose Mr.Suzuki based solely on a 2013 document Mr. Suzuki signed, acknowledginga potential brake problem. The document was not sent by Mr. Suzuki, wasnot addressed to him, and did not copy him. The signature only served toshow Mr. Suzuki was made aware of the potential problem. The FirstDCA certified the issue of great importance to the Florida Supreme Court.

• The case is pending before the Florida Supreme Court.

• Should the Florida Supreme Court adopt the Apex Doctrine, defendantcorporations will have stronger protection against intrusive corporaterepresentative depositions of its officers.

Florida Rule of Civil Procedure 1.280

Upon motion by a party or by the person from whomdiscovery is sought, and for good cause shown, the court inwhich the action is pending may make any order to protecta party or person from annoyance, embarrassment,oppression, or undue burden or expense that justicerequires, including one or more of the following: (1) thatthe discovery not be had; (2) that the discovery may be hadonly on specified terms and conditions, including adesignation of the time or place; (3) that the discovery maybe had only by a method of discovery other than thatselected by the party seeking discovery; (4) that certainmatters not be inquired into, or that the scope of the

discovery be limited to certain matters. . . .

Challenging the 1.310(b)(6) Deposition

Complying With 1.310(b)(6) Notice

• The duces tecum or identification of requesteddocuments is crucial to identifying the right person andunderstanding the issues.

• Risk Management and Defense Counsel’s joint efforts.

• Using specific departments or staff to assist gatheringinformation and educating the witness.

• Best Defense – Delay!

Choosing the Corporate Representative

• What if your organization nolonger has a representative forthe applicable time period?

• What are the pros and cons of“educating” a current employee?

• One versus multiple peoplespeaking for the hospital.

Preparation is Key

• What should deposition preparation of the corporaterepresentative(s) involve?

• What is the role of documents?

• Why should risk management and other department headsassist with the process?

• Delay when necessary!

The Corporate Representative Deposition

• What to expect?

• What if the deposition occurs via Zoom or other virtual platform?

• How defense counsel protects the hospital?

• What are the possible pitfalls?

Pitfall vs. Strategic Decision

When the representative does not

know the answer!

Use the Witness to Promote Defense Strategy

Bridging the Gap in Risk Management and Patient Safety

August 18-21, 2020

QUESTIONS?