I would estimate that I advise more than eighty percent of the people I speak with on the telephone that I cannot represent them in a medical malpractice case. Most people would be surprised to learn that many of the cases that I reject without a face-to-face meeting involve people who were undoubtedly the victim of a medical mistake. This is because a medical mistake is only one part of what a plaintiff must prove in a medical malpractice trial.
There are exceptions to every rule, and each individual case has to be evaluated on its own, but here are three questions I consider when trying to determine whether I should meet with a client and investigate a potential medical malpractice case:
1. Did the client experience an unexpected medical outcome?
Approximately 90% of the time, after I review a client's medical records and the pertinent medical literature, I can tell a client whether a health care professional provided a patient with negligent medical treatment. About 10% of the time, I need to consult an expert before reaching this conclusion, because the key issue in the case requires the examination of physical evidence and a specialist's exercise of judgment (for example, case involving the interpretation of an x-ray).
When a client initially contacts me, the analysis is simpler: Has the client experienced an unexpected medical outcome? Not every unexpected medical outcome occurs because of a medical mistake, but almost every medical mistake results in an outcome that a patient did not expect. Some medical procedures carry risks that occur and are unavoidable. These kinds of risks, however, are supposed to be explained to patients before procedures pursuant to a doctor's duty of informed consent, and therefore would not be unexpected.
2. Did the unexpected outcome likely result in a significant permanent injury.
Medical malpractice cases are very expensive to prosecute. First, although I work on a contingency fee basis (I only get paid my fee if a client recovers), like all lawyers I keep track of the time that I have to dedicate to each case I prosecute. Relative to other kinds of litigations, medical malpractice cases are very time consuming. They involve complex issues of medicine and law and attorneys must put in allot of time preparing for every step of the litigation process. Additionally, because these cases usually involve high stakes and significant injuries, doctors and insurance carriers on the other side will only offer to resolve a litigation when they are convinced that if a case goes to trial, there is a substantial chance that they will lose. Therefore, most of the time, these cases have to at least get through the late stages of a litigation so that the defense can size up your case.
A simple medical malpractice case will often require my office to advance more than $30,000 in actual expenses. More importantly, these cases usually require a commitment of at least $200,000 in attorney time (even though it is not billed). As a result, medical malpractice cases have to have a potential financial upside of several hundred thousand dollars to be economically viable.
For a client's malpractice case to be worth several hundred thousand dollars, it usually must involve an injury that will cause permanent problems and restrictions. Furthermore, this injury must be one that cannot be repaired with additional medical care.
Sometimes a client will telephone me about a potential medical malpractice case and they do not know the extent of their injury because they are still undergoing medical care in an effort to mitigate the outcome of a mistake. If it appears at face value that additional care will help, I suggest a client focus on trying to get better, and call me in a few months to discuss the case further if they do not. In New Jersey (where I practice) most of the time a plaintiff has two years from the date malpractice occurred to file a lawsuit. Therefore, there is usually time for a client to seek medical care and get a better understanding of the consequences of a medical mistake.
3. Will the injury have a significant impact on the client's life?
At the end of a trial, a jury is asked to compensate a medical malpractice victim for the pain, suffering and loss of enjoyment of life caused by an injury resulting from medical malpractice. The jury also awards damages for all economic loss suffered as a result of an injury, which can include (a) medical costs incurred because of an injury, and (b) loss of wages. The more significantly an injury impacts a client's life, the more likely it is that a jury will render a substantial verdict.
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