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Joan Rivers Died & Surviving Daughter Melissa Rivers Contemplates Bringing a Wrongful Death Lawsuit. Here are 3 common defenses they are likely to encounter if a lawsuit is filed.

News reports indicate that Joan Rivers daughter, Melissa Rivers, will likely file a medical malpractice wrongful death lawsuit in the near future. There are indications that she is waiting until the New York State Department of Health finishes its investigation before deciding whether to file suit.

Here is a look at the three common defenses that the attorneys for the doctors and the endoscopy Center will raise if Melissa goes forward with a medical malpractice wrongful death lawsuit.

  1. Don't blame us, we did everything appropriately.

  2. If we did something that violated the basic standards of medical care, Joan Rivers also contributed to her own demise.

  3. If we are somehow responsible, the value of her injuries and her untimely death are nowhere near as significant as you claim them to be.

As you read through those three common defenses, you will become infuriated. You will shake your head wondering how the defense attorneys could possibly raise these arguments. After reading many of the news reports about the circumstances surrounding Joan's untimely death, you think it is ridiculous that any defense lawyer could raise these defenses.

Let me share with you a little secret...or as Joan used to say "Can we talk?"

These defenses are raised in virtually every medical malpractice and wrongful death case here in New York. Defense attorneys have an obligation to represent their clients to the best of their ability. Likewise, an injured victim's attorney has an obligation to put forth their best case possible.

I will tell you that merely asserting a defense, does not mean it is a valid defense. It is often a knee-jerk reaction that responds to the allegations and accusations against the doctors and the medical facility where the procedure occurred. Here's typically how it goes:

“You did it.”

“No I didn't.”

“Yes you did.”

“Well, maybe if we did, you are also at fault.”

“No we are not and here's why.”

“You are at fault and were careless. Now you must compensate us for all the harms and losses you caused.”

“Maybe we were at fault, but your injuries are not worth what you think they are.”

The news reports also indicate that Joan's autopsy results were inconclusive and they were awaiting further pathology evaluation.

News reports suggest that Melissa Rivers is waiting for the New York State Department of Health to complete their investigation before filing a wrongful death lawsuit.

It's important to note that even if the New York State Department of Health determines that there were deficiencies in treating Joan Rivers, those findings may not be admissible at trial.

Here's why...

Can You Use the Department of Health Findings at Trial?

The Department of Health uses different guidelines in order to determine whether treatment violated certain protocol, rules and procedures. The standard for determining whether those violations occurred are different than the legal standard that is used in evaluating whether a doctor violated good and accepted medical practice.

There has been much litigation on this issue. As you can imagine, if the Department of Health, while conducting an independent investigation into a tragedy concludes that doctors or nursing staff violated rules and protocol leading to injury, the injured victim and their surviving family want to use that information at trial.

The family's goal is to try and show that an independent agency performed a detailed investigation and concluded that the patient did not receive appropriate care and here is why.

The reality is that even though the Department of Health may conclude that the patient received inappropriate care which resulted in harm or loss of life, those conclusions cannot be used at trial.

At best, we can have findings of fact used to support our claim. The actual conclusions about whether specific treatment represented a departure from good and accepted medical practice has to come in the form of expert medical testimony from doctors who have reviewed the detailed records.

Medical Experts are required to testify

Typically, in these medical malpractice wrongful death cases each side will bring in multiple qualified medical experts to give their opinions and conclusions about whether the treatment was appropriate or whether they violated the basic standards of medical care. Then, it will ultimately be up to a jury to conclude whether the surviving family has shown that they are more likely right that wrong that what they are claiming is true.

Legally, that's known as the burden of proof. Technically, it means that the surviving family must show by a preponderance of evidence that what they are claiming is true.

You should know that a jury does not have to sit in judgment for weeks upon weeks trying to determine whether Joan Rivers' family is 100% correct in what they are claiming. Instead, they only need to show that they are ever so slightly more right than wrong that what they are claiming is true. In other words, they only have to tip the scales ever so slightly in their favor in order to justify a verdict in their favor.

If the New York State Department of Health comes to the conclusion that there were deficiencies and violations from protocol and good medical practice, it is highly likely that will make headline news.

Really smart trial attorneys can use those findings and the extensive news coverage as leverage in an attempt to try and negotiate a settlement prior to filing a lawsuit.

One issue that has not been discussed in the news reports is what the available insurance coverage will be for the different doctors and endoscopy facility if a lawsuit is actually filed.

Every physician in New York is required to carry medical malpractice insurance coverage. Each doctor is typically required to have $1.3 million worth of insurance coverage per event in any given year. If there are two doctors, one the gastroenterologist and the other Joan Rivers' private ear nose and throat doctor, then you are looking at two insurance policies with a total maximum value of $2.6 million. Then you look to see what the coverage was for the endoscopy Center which will likely also be $1.3 million.

These assumptions are based upon what is typically seen in malpractice cases here in New York.

That would provide $3.9 million worth of insurance coverage. However, we also have to look at whether there is any excess insurance coverage or umbrella coverage which would provide additional insurance over and above their basic policy.

The only way to learn how much insurance coverage is available is by filing a lawsuit and demanding insurance coverage information. Prior to filing a lawsuit, there is no way an injured victim and their attorney would gain access to that information.

In some cases there may be additional sources of insurance as the doctors are often insured separately as well as having an insurance policy with the medical group that they work for. That means that the professional corporation who employed the doctor may have their own separate coverage that may come into play in this scenario.

What if the injuries are worth more than the insurance coverage?

Another issue that arises often is what happens if the injured victims' injuries are worth more than the available insurance coverage? Can the surviving family try to go after the doctors personally, over and above what their insurance coverage provides?

Typically, when there is a substantial amount of insurance coverage it is highly unlikely that an attorney will go after the doctor's personal assets to obtain that compensation. That tactic is more often seen when there is very little or no insurance coverage and the surviving family has no choice but to go after a doctor's personal assets in order to obtain full compensation for the harms and losses they caused.

Some readers might think that this is an open and shut case just based upon what the news reports revealed.

After being in practice for more than 26 years handling medical malpractice and wrongful death matters, I will tell you, from an insider's standpoint, these cases are never open and shut unless you have a clear smoking gun where it is so obvious to all involved.

Even then, where it is clear-cut that the doctor violated the basic standards of medical care, the defense always fights tooth and nail about the value of the person's injuries. The defense attorneys who handle medical malpractice matters are often some of the best defense attorneys in the state. These attorneys are often worthy adversaries who put up a good fight.

However, because of the high-profile nature of this tragic and untimely death, there are some instances where a doctor, his attorney and his insurance company will make every effort to try and resolve this as quickly as possible so as not to shine a spotlight on the doctor, the endoscopy facility and the insurance company.

Whether that will happen in this case, remains to be seen.

This has been just a brief inside look at some of the typical defenses that will be raised if Melissa Rivers chooses to proceed forward with a medical malpractice wrongful death lawsuit here in New York seeking compensation for the harms and losses her mother suffered as a result of apparent violations of the basic standards of medical care.

To learn more about whether a surviving family can bring a claim for pain and suffering if their family member was in a coma, I invite you to watch the video below...


Gerry Oginski
NY Medical Malpractice & Personal Injury Trial Lawyer