For adult claimants, the statute of limitations in Ohio for a medical malpractice claim is one year from the date of discovery of the injury, or one year from the termination of the physician-patient relationship, whichever is later. In my practice, the first line on any intake form is the name of the injured individual, the date of birth, and the date of the incident (i.e., surgery, or target treatment date). Often clients are unclear on dates of diagnosis, discharge, surgery, or even death of the relative, and they may unintentionally provide misleading information. Ask whether they have documentation available to confirm the date and explain the importance of the date and the application of the statute of limitations. In some instances, the client may have just discovered the injury or claim. Be careful not to rely on a discovery exception unless necessary. If the SOL has passed, the case will likely be rejected unless you can make a tolling argument, which are difficult to make.
Determine whether there is sufficient time to review the claim.
Medical malpractice claims require affidavits of merit. Failure to include an affidavit will result in a dismissal of the claim. As such, you will need time to obtain and review the medical records, medical literature, and have several experts review the records and render sufficient opinions under the Ohio Civil Rules. If time is an issue, you may consider the 180 day letter, but this should be a last resort. Depending on your resources, there may not be sufficient time to review the case. In addition, you want to provide the client with at least a month to be in a position to find another lawyer if your review is negative. Cases where the statute is running close (i.e., less than two months) to the intake can be very risky cases due to the lack of due diligence. You may wish though to learn more about the case before making a final determination,
Determine the type and extent of the injury.
Given the expense of medical malpractice litigation, caps, and risk, attorneys have a difficult time accepting cases unless the cases involved significant permanent injury or wrongful death. Some cases may involve infections or non permanent injury that required extensive medical care or caused loss of income that may justify litigation, so be careful not to move too quickly in evaluating the damages.
Take a full medical and personal history
Once I understand the injury, it is helpful to start a few years back to gather the medical history to understand whether the patient was healthy or whether they were already suffering from a related or unrelated chronic illness. The patient's background also is a good starting point to begin thinking about the pathology and causation of the alleged injury. You also want to know all the physicians the patient has seen over the past few years, particularly if you are dealing with a delay in diagnosis, where the client may not be thinking about all the defendants. Do not allow the client to narrow your vision of the case. If based upon your own background and knowledge, the claim seems reasonable, and you have time, you should finally ask some of the character questions and make a determination of whether the client presents well over the phone. If the history is in line with the allegation and the client presents well, you should schedule a meeting as soon as possible.
Schedule a meeting or reject the Case
If the intake appears that it justifies a formal review, schedule the meeting right away. Inform the potential client of the necessity of moving quickly and make a home visit if necessary. If the case does not meet your standards, then the case should be rejected and the appropriate rejection letter with statute of limitations advisory should follow. Prior to a meeting, it is very helpful to read the applicable medical literature, which will assist you in asking better questions and understanding the case at the interview, where you will make the final decision on whether to accept the case for review. If possible, run the fact pattern by an expert you are currently working with or have a working relationship with before meeting with the client to identify some of the issues you may have missed.
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