Welcome to Trial Lawyer Talk. In this episode, we talk with San Diego trial lawyer Suzie Mindlin.  Suzie is a phenomenal medical malpractice lawyer.  Suzie shares her insight into medical malpractice cases and shares with us the story of a meaningful trial.

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Scott Glovsky: Welcome to Trial Lawyer Talk. I’m Scott Glovsky and I’m your host for this podcast. Where we talk to some of the best trial lawyers in United States. We’re really fortunate today to have Suzie Mindlin, who’s a phenomenal lawyer from San Diego.

Now I want to take a minute to thank all of you who’ve rated us on iTunes, and if you haven’t I’d really appreciate it very much if you could take a minute and rate us on iTunes. I’d also love to get your feedback so we can continue to make this podcast better and better. Let’s get started.

We’re very lucky today to have with us, a phenomenal lawyer from San Diego, Suzie Mindlin. Suzie’s practice is in the area of medical malpractice for many, many years, and is really a go to lawyer in San Diego, for all things medical malpractice. Suzie thank you very much for being with us today.

Suzie Mindlin: Thank you for having me, Scott, it’s an honor.

Scott Glovsky: Suzie,can you tell me about a case that profoundly impact on you?

Suzie Mindlin: There’s one that just floats in my mind. I carry it with me a lot, it was a loss, a very sad loss. It was about a young woman from a very remote part of Mexico, up in Oaxaca State up on a mountain. She came up to the United States, because she had two little girls, Sissy and Rosy, who were very bright.

They lived in a village, remote village, at that top of a mountain. Schooling up there was hard to find, and when you did it was expensive. She knew that her girls needed more financial support that she couldn’t possibly give them if she stayed. So with a heavy heart, she left them with their grandmother, and came up to the United States to work.

Her brother and sister were already up here. So they had a place to live, and she had a support group, so that was fine. She wasn’t here too long before she met a man. She wasn’t married down in Mexico, so she wasn’t attached to anybody. She met a man up here in the United States and got pregnant. She went to have her baby at a community hospital in San Diego county.

She had a condition, it’s called Help Syndrome. I won’t go into the technical aspects of that, I’m not sure I remember them all. But what that meant was that she developed liver inflammation in the very last days of her pregnancy, and it was never detected. When she went into labor the hospital people realized she was probably going to have to have a C-section.

The obstetrician performed a C-section, and when he did that… The baby was fine, beautiful little girl. When he did that, he inadvertently sliced liver because it was swollen and in a place where it didn’t quite belong, and he didn’t realize he sliced the liver. The young woman bled to death in the recovery room.

We sued the hospital, and sued the doctor, they should have been monitoring her. There was no reason to let her die like that. There’s a lot of anti-Mexican feeling in this part of the county. When we deposed nurses and others, it was clear to me that they really didn’t care that much about it. It was very shocking to me.

They felt that these Mexican’s come up here and they use our resources and hospitals, they don’t pay anything, and they take up time away from other important patients. They were not terribly concerned about this death. The doctor felt the same way. Took his deposition, and shows unfortunate, but I did everything I could, which was a lie. He hadn’t done diddly squat.

So we had to take the case to trial in the same part of the county that the hospital was in. Of course, it’s a respected hospital, and the doctor was a respected obstetrician. I made a mistake in opening, I think, at least one of the jurors told me that I did.

Scott Glovsky: In your opening statement?

Suzie Mindlin: In my opening statement, yeah. I had gone down to Oaxaca to meet the girls, and meet their family, their grandmother, uncles, and aunts. They all came down to Oaxaca City, when I was there. I went with another wonderful lawyer Pat Montez, because I don’t speak Spanish. Pat is a very gifted lawyer and speaks beautiful Spanish, and she agreed to go with me.

So we went down there, and I got to know these wonderful girls who were obviously beautifully brought up and well educated, and lovely young women, 14 and 11 I think they were. I knew from their story, that Pat had elicited from them, that the recollections of their mom were of starting in the village and taking the cattle, a few cattle that they had, down to a pasture to graze every day.

They took cattle down to the pasture to graze, and mom and the girls would sit and tell stories, maybe sew, or something else, and just wait while the cattle grazed. When it was time to go back up to the village, mom would get up and [inaudible 7:06]. The cattle would come, and they would go back up the hill. I thought that was such a sweet story.

I made the mistake of telling it in opening. When I heard from the jurors after we lost the trial, was that they felt that we didn’t have a very strong case, because I was relying so much on the emotion. They knew I was just trying to tug their heartstrings, and that must mean that we didn’t really have good proof. Now, we put on good proof, no question about it. We had a great expert and strong witnesses.

Scott Glovsky: Suzie, I can see your tears.

Suzie Mindlin: Yeah.

Scott Glovsky: If your tears could talk, what would they say?

Suzie Mindlin: They would say that you can try to do your best as a trial lawyer, and you can believe you are doing your best, and you can still lose. You can lose for the people you care about so much. You’ve come to care about them so much. That’s what my tears would say. It was a very hard lesson for me.

You can tell I’m a very emotional person, emotions are important to me. They are important to connect us to our community, and the people who could help our clients. I work on this all the time, trying to balance my feelings, so that I can engage people who are in a position to help my clients without scaring them, or making them feel pressured to do something that they have to make the choice to do themselves.

Scott Glovsky: How did this case change you?

Suzie Mindlin: Well, I think it helped me come to grips with my emotions somewhat. I cry easily, always have. I cry if I’m frustrated or angry. I don’t just cry when I’m sad. So my emotions are usually very close to the surface, that’s what helps me understand my clients. They help me, they’re an instrument that I use to understand my client’s story, and use to tell it with authenticity.

So they’re important, I don’t want go get rid of them. But it reminded me that I cannot rely on them alone, and that I have to respect the neutrality of jurors and not try to influence them just with feeling. I think that’s probably the most important thing I took away from it.

I carry those girls with me everywhere. I sent money to them, as long as they were in school, I continued to send money to them, so that they could have the clothes and books that they needed. I hear they’re still doing really, really well. So that makes me really happy.

Sissy and Rosy moved down to Oaxaca, they have good jobs, and they’re productive people. In some ways, who knows, maybe having a huge amount of money or something would have sent them in a different direction. We can’t know what necessarily the consequences of our losses are.

Scott Glovsky: You’ve shared with us, that you feel like you lost this case, because of your emotions and your choice to tell that very real story.

Suzie Mindlin: That’s right.

Scott Glovsky: Now, as a listener I don’t think that’s why you lost that case. What I do think, is that medical malpractice cases in California are tremendously difficult. Can you tell me a little bit about how it feels to go into a trial? Because you’ve done this dozens and dozens and dozens of times.

Which many lawyers in California, with our limitations on damages, will not take a slam dunk case. Yet, you have the courage to get out and go back and go back, and lose, and win, and win and lose, and you get up and fight. But I don’t think that our community really has any sense of what it feel like to litigate on behalf of somebody, against opposition.

Suzie Mindlin: Well, it’s a tough road to hoe in California. Most lawyers, by far, or only a handful of lawyers in this state, who even look at medical malpractice case anymore, because the damages are capped. There are just many disincentives. They set up this series of laws that was passed in 1975, called MICRA.

Scott Glovsky: Let me interrupt you for a second, because laws suck. But as far as our storytelling, and our gift that we’re getting from you of your stories, and your girls. What does it feel like to do these cases?

Suzie Mindlin: It’s scary, because you have to risk your own money, or someone else’s money. It’s very expensive to run them. So you’ve got a lot of just plain financial burden on the line, and that’s not the most important burden. The burdens of the needs of the victims, and the emotional burdens that you carry from past losses and win, and that kind of thing. I don’t know why, but I can’t do anything else. I can’t get interested in anything else. It’s what drives me.

Scott Glovsky: Why is that?

Suzie Mindlin: Well, that’s a good question. My brothers are both MD’s. I used to joke that they held me down and tickled me when I was little, and that’s why I do it. But that isn’t really why I do it. I do it because I understand from my brothers’ education, how critically important it is for physicians to be self-disciplined, well-trained, and completely devoted to their patients.

The best one’s are always, but there is a very tiny percentage of physicians who are in this for the money, and run mills so that they can buy a compound in Hawaii, and retire at 45, and never look back. There is a substantial number of doctors, especially in California, who have goals that, in my way of thinking, are not consistent with what a physician’s goals should be.

Those doctors tend to make mistakes, either they’re not paying attention, they don’t care, or something. I think everybody cares, but some people care more than others. The sign of medical practices that I see in suing defendants, generally revolves around a prophet motive that doesn’t belong in our healthcare system.

Scott Glovsky: How often do you experience a medical malpractice cases, with the person you’re suing, whether it’s a doctor or a hospital. Are they forthcoming with honest medical records, or do people lie a lot?

Suzie Mindlin: That’s a really interesting question, because my experience may not be vast enough to know to know the answer to that. I really don’t know. One thing about medical malpractice law in California, is that if you can prove fraud in a medical malpractice case, then you can get past the caps on damages. So there’s an incentive for lawyers who are representing injured patients to be looking for fraud, and to try to find out was there something done here that is so reprehensible that we can get out of the caps on damages, and get the poor family something.

Scott Glovsky: Yes, but you and a handful of other lawyers are the only lawyers in the state that will even look at these cases, let’s keep that in context.

Suzie Mindlin: Well we don’t really know the answer to the question, how often does fraud occur. It probably occurs a fair percentage of times. Just because it’s fairly innocent a lot of times. A doctor forgets to write a note in the chart, and he goes back later when the shit hit the fan, and changes the note, or writes in a little something that he really should have done, or something like that.

So you see that kind of thing fairly often. They don’t call it doctoring the chart for nothing. It’s doctoring because it happens fairly often. But whether it leads to injury or not is a different question. I think that the number of instances in which fraud leads to injury is probably fairly small.

But we’re talking about a huge population in this state, and a huge population of doctors, and lots and lots of hospital. So I tend to think that the laws around medical malpractice in California have invited bad doctors here. They know they’ll be protected by the laws. They don’t have to worry about it, if they get sued they’ll win, literally 99 times out of 100. So they don’t worry about it here, and they feel a little freer to act in ways that will protect themselves, if it injures the patient, well who’s more important.

Scott Glovsky: What do you think about individuals who need medical care? I understand you’re not a physician, but you have a particular insight in caring about people and experienced the medical profession. What would you tell your loved ones when they’re going to get medical care, about getting the right medical care?

Suzie Mindlin: That’s a very good question. It’s not possible for medical consumers to know who’s good and who’s bad. I mean, even if they’re unusual, and they actually look the doctor up on the medical board, or take some other steps to try to figure out whether the doctor’s a good prudent, reasonable, doctor or not. So it’s almost impossible.

I have knowledge, I’ve developed over decade in southern California, so sometimes I know who the good doctors are, and sometimes I don’t. When I talk to my family about going, I tell them to ask lots of questions, even if it makes them feel uncomfortable.

Even if it makes the doctor uncomfortable, ask those questions, because the doctor should not feel uncomfortable. If he starts looking uncomfortable then that’s a pretty good sign to get up and walk out. It has a lot to do, like everything else, with the chemistry between two people.

A lot of doctors are very good at projecting caring, loving, and conscientiousness even when they can’t really live up to those things. I think they’re trained to do it, it’s bedside manner, it’s part of their work to connect with their patients, and sometimes it can be very misleading for the patient.

So you can’t really depend on personal chemistry, you’ve got to ask the hard questions. How many of these procedures have you done? How many have been successful? What’s your infection rate? What’s the infection rate of the facility where we’re going to do this? You have to ask hard questions.

Scott Glovsky: In every profession there are people who are incompetent, or bad apples, or just not good. There’s bad lawyers, there’s bad teachers, there’s bad doctors. Much has been said recently about policemen protecting policemen and not willing to be honest, or testify against another policeman.

Of course we think of doctors as one to take care of us, and being honest, truthful, and caring. Do doctors testify against others? Is it hard to find a doctor who will testify that another doctor made a mistake, like a neurosurgeon for example?

Suzie Mindlin: If you take the specialty of neurosurgery in particular, then it certainly is. There are certain specialties… Medicine is very vulcanized now, it’s a specialty-by-specialty thing. The professional associations that go with each specialty vary somewhat in the pressure they put on their members, not to testify against other members for example.

Neurosurgery, in particular, is one of the ones that is protective of its members. They discourage their members from testifying against other members. Orthopedic surgery is similar to that.

Scott Glovsky: How do they do that?

Suzie Mindlin: They send out letters. We actually have a couple, where they’ve actually been warned, don’t do this. They also do it by acting when they see something that they can challenge about what a member has said about another member.

For example, I’m thinking now of the case of an orthopedic surgeon in San Diego, who has testified on behalf of the insurance industry for decades. What the insurance industry wants him to do, is to reduce the size of the damage awards that juries will give.

So his job has been to basically say, if you have a neck injury in a car crash, it should have been better in four to six week. You might have had a little bit of chiropractic help or physical therapy, or something, but that’s all you’d need, and then you’d be better. He’s faking everything that happened after that, is basically what this doctor would say.

Very intelligent man, very smooth and suave, and likable, never once did his professional association say anything to him about testifying against the victims of car crashes and other kids of accidents. But when he flew to Chicago and testified on behalf of a plaintiff in a medical malpractice case, he was injured.

Scott Glovsky: What does that mean?

Suzie Mindlin: That means he was told, spanked really hard, for doing that. It was because they said… Well it was because he didn’t have all the data when he did that. He should have been careful to have all of the data before he did that. But I know from talking to him, that he said there wasn’t an iota of data presented to him later, that would have changed his testimony a bit, he was being honest.

I think what we see is a code of silence just as with the police. In the medical community it’s stronger within certain specialties than others, but you see it all the time. What’s even more important about it than the specialties, is the geography. If the defendant is in a given community, then it would be very hard to find anyone to testify against him in that community.

Scott Glovsky: Let’s say for example, the defendants in Los Angeles, what does that mean?

Suzie Mindlin: Well, LA is a little less like this, because it’s a huge community, and it has so many different medical centers, and so forth. But even then, if you’re a doctor in a specialty in LA, you’re going to be seeing other doctors in your specialty at cocktail parties, gala, and whatever else. You’re going to play golf with them, or whatever.

Almost anywhere you will find that there’s a reluctance to say anything negative, even if you believe it in your heart, against a colleague in that geographic area. The willingness to testify against someone in your specialty increases with distance.

For example, which is why the doctor in San Diego flew to Chicago to testify. I mean he’s in Chicago, nobody in San Diego needs to hear about it, so it’s never going to get out that he testified on behalf of a plaintiff in a med mal case. As a result of that, when we sue doctors, in San Diego, Riverside, or someplace like that, or LA, we usually get our opinion witnesses from elsewhere.

Scott Glovsky: Meaning other words, the doctors that you hire to look and say hey, did something bad happen, was there negligence here.

Suzie Mindlin: Exactly. When I have doctors review records and case materials generally, what I do is I tell them, just look at all of this and tell me what happened, because the family needs to know. I’m not necessarily going to sue anybody. I’m not necessarily going to encourage anyone to take action they wouldn’t otherwise take. But we need to know what happened.

So experts look at it the way a radiologist looks at an X-Ray. They look at everything, all the four corners of that image, because they’re supposed to be looking for a broken rib. But if they see a tumor on the pancreas, they’re going to call that out.

It’s the same thing, I want the reviewing expert to see everything, all the four corners of the case, and then tell me what happened. If you do that in the community where the defendant resides, you will get absolute garbage. If you do the expert review 500 miles away, you’re much more likely to get the truth.

Scott Glovsky: Interesting. Well Suzie, thank you so much for being with us. You are a phenomenal lawyer. You mentor and teach lawyers all around the country, and you’re never unavailable when anyone needs help. I’m very proud to know you, and I’m proud at the wonderful work you’ve done for a long time and continue to do, fighting for people who don’t have anyone else to fight for them. So thank you for your courage, your skills, and being a wonderful person in sharing your time with us today.

Suzie Mindlin: Aw, thanks so much, Scott. It’s really an honor to be here, and I humbly receive your kind words.

Scott Glovsky: Thank you for joining us today for Trial Lawyer Talk. If you like the show, I really appreciate if you could give us a good review on iTunes, and I’d love to get your feedback. You can reach me at www.scottglovsky.com. That’s S-C-O-T-T-G-L-O-V-S-K-Y. com, and I would love to hear your feedback.

You can also check out the book that I published, called Fighting Health Insurance Denials: A Primer for Lawyers, that’s on Amazon. I put the book together based on 20 years of suing health insurance companies for denying medical care to people. It provides a general outline of how to fight health insurance denials. Have a great week and we’ll talk to you in the next episode.

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