PHILIP DEMAINE – Profile of the Month

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Phil deMaine is a senior partner with the law firm, Johnson, Graffe, Keay, Moniz & Wick, LLP. For 19 years, he has defended professional liability claims and licensing actions involving a wide variety of healthcare providers. Mr. deMaine has successfully tried numerous medical malpractice cases, including catastrophic injuries, brain damage, and wrongful death claims. He is a Past President of the Washington Healthcare Risk Management Society, a member of the Washington State Society of Healthcare Attorneys, and a member of the Washington Defense Trial Lawyers Association.  He frequently lectures to healthcare providers and attorneys on medical malpractice issues.

  1. How often do you have cases that involve mediation?

I would estimate one per month.

  1. What qualities do you look for in a mediator?

First and foremost, like other attorneys, I like a mediator who can get the case resolved.  Mediators have lots of different styles. The process of selecting a mediator depends on the type of plaintiff, what their personality is, if I’ve met him or her, and the opposing attorney’s personality. When choosing a mediator, other factors to consider include the needs and complexity of the case, damages, risk of exposure, and of course the area of expertise of the meditator. It’s important that the mediator has specific experience and knowledgeable in the areas of law for that case. There are instances where I know I will need a mediator with a strong personality when a plaintiff is hard to control and has unrealistic expectations. Sometimes the plaintiff’s attorney also wants a strong personality to help make the plaintiff understand the realities of the case.

3.How strongly do you push to have a mediator you propose be accepted by the other side?

I don’t usually push very strongly. I usually ask the other side for a few names that they’d like to start with. However, I know which mediators I like and have had success with. So we find a common ground. I want to use a mediator the other attorney wants to use so everyone is comfortable with the final selection.

4.How important is pre-session communication with the parties?

It’s useful to outline important issues in the case, but it may be more important to develop trust and rapport between the mediator and the claims representative or other person making the decisions on my side.  This is especially important if the decision-maker on my side has never worked with that mediator. Both sides have a pretty good idea of where they want to go before the pre-mediation session occurs.

  1. How important is it for the mediator to follow up if the mediation doesn’t result in a settlement?

It’s very important for mediators to follow up, and I especially like mediators who do it proactively. Oftentimes, mediators lay the groundwork for settlement during mediation. So, if the mediation doesn’t initially settle, that groundwork has been laid, ultimately, for possible settlement in the days or weeks ahead. I think this is an important part of the mediator’s job.

  1. What ADR topics would you like to see discussed at an ADR-related CLE?

I think it would be beneficial to have a panel of mediators talk about what’s most important to them to get from both sides to get a case resolved, and the most effective ways for each side to approach the mediation in order to facilitate the ultimate goal, which is to reach a settlement everyone can live with. Ideally, it would be a diverse panel from different firms. As a trial attorney, mediation is not something you get a lot of training for before you start your practice.  Having effective mediation training could be useful, particularly to younger attorneys. In this profession, you usually don’t really learn to do something until you do it in your practice, and that’s very true with respect to effective mediation.

  1. Tell me more about your practice…

The majority of my practice involves defending healthcare providers in medical malpractice and licensing actions. I also handle other insurance claims and, to a lesser extent, employment matters. It makes for an interesting and diverse practice.

  1. Are there any issues or trending topics that you would like to discuss?

What I’m seeing are some subtle trends in medical malpractice. I’m seeing more attorneys involved in medical malpractice lawsuits who are not in the group of “regular players.”  I’m seeing fewer claims brought by the well-established plaintiff medical malpractice law firms.  I’m not sure why, but this is something I’ve seen over the last couple of years.

One general trend we have seen in the last several years is larger entities have been purchasing smaller entities, hospitals, and clinics, so the number of large institutional healthcare providers is shrinking. Many healthcare providers have become part of the larger health care systems. In that regard, it is a bit of a changing landscape for the players on both the plaintiff and defense side of medical malpractice litigation.

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