THE ATTORNEY REVIEW PROCESS FOR MEDICAL MALPRACTICE CASES
Your grandmother went to the hospital with a stomach ache and died. You’ve called every attorney in town and they won’t take the case. You even have evidence that they too heavily sedated her, and that she did not have a condition that she should have died from. You keep asking yourself, “Why won’t a medical malpractice attorney take my case?” Usually, a Medical Malpractice is handled on a contingency fee, which means that you don’t pay anything until the case is settled or there is a verdict in your favor, and they are paid out of the proceeds. If they lose the case, you pay nothing, but they don’t get paid, so they have to be very careful what they take on. When you finish reading this post, you’ll know exactly why no experienced medical malpractice attorney will take your case!
Despite the claims of the American Medical Association and other doctors groups that there are too many medical malpractice cases, the reality is that most cases (more than 96%) of medical wrongdoing never result in a claim or lawsuit, even if the doctor clearly did something wrong. The major reason is that insurance companies that defend medical malpractice cases do not settle them early in the process, requiring a tremendous amount of money for each case to pay for experts. The experts must be doctors willing to testify against other doctors, so you can imagine how much they charge!
Medical Malpractice Attorneys will only take cases that are strong in every way. There must not only be overwhelming evidence of wrongdoing, but also a substantial amount of damages that can be collected to offset the investment (time and money) they must make, and the risk they are taking of losing that investment due to a “defendant’s verdict.” If the case isn’t “rock solid,” no experienced Medical Malpractice attorney will take it. Sometimes a less experienced attorney will sign the case up, but then they’ll drop when they realize that they don’t know what they’re doing and how much it’s going to cost!
These are the factors that a Medical Malpractice Attorney uses to decide whether or not to accept (and invest in) a medical malpractice case:
The Breach of Duty by the Medical Professional
It must be shown that the medical professional (Doctor, Nurse, Physical Therapist, etc.) deviated from the accepted standard of practice. Sometimes this is clear, such as an instrument left inside a patient or a procedure performed on the wrong part of the body. Other times it’s a judgment call such as whether or not a procedure should have been ordered (ie; c-section) or failing to diagnose a condition at an earlier stage. There are risks to procedures, so it must be determined whether a bad result was an expecting risk or malpractice.
Casual Relationship Between the Malpractice and the Injury Claimed
It must be shown that the malpractice actually caused the injury. Sometimes this is clear, such an an instrument left inside a patient causing an infection or prescribing penicillin to somebody that is allergic, causing anaphylactic shock. Others times it’s not so clear, such as a short delay in diagnosing terminal cancer, where the patient would probably have died anyway, even if it had been diagnosed a little sooner.
The Monetary Value of the Injury (Damages)
This is where potential clients get the most frustrated when attorneys will not take their case. There has to be a likelihood that the money to be collected will be more than what is invested. For example, if a doctor leaves an instrument inside a patient, takes it out, and the patient recovers perfectly, damages are minimal, so attorneys won’t take this case. If a doctor improperly sets a fracture, but it is reset and the limb heals well, not enough damages. Damages for “wrongful death” are based on the life expectancy of the person and their future earning capacity, so for persons over 80, it is usually not possible, as the cost of the litigation will be greater than the damages.
Assessment of the Client
This is the least important factor, but sometimes comes into play. If the client is a drug abuser or felon, the jury may not take them seriously, and come back with a defendant’s verdict, even if their status has nothing to do with the malpractice. Somebody that is not sloppy looking can be perceived as somebody that does not take cares of themselves, reducing sympathy from a jury.
You Waited Too Long
Once the Statute of Limitation runs on your case, you cannot start an action. In New York, for malpractice, this is 2 1/2 years. This time limit is not necessarily from the time of the malpractice, but from the time of the last treatment with the medical professional, so it’s worth it to call an attorney to discuss whether an action is still viable.
If an attorney believes, based on the factors above, that there may be a case worth bringing, you are into the second round. The attorney will agree to investigate your case, to see if the evidence substantiates the claims.
The attorney will request your medical records and review them.
If the attorney believes there is a case, he will send out the records to be reviewed by a specialist. This is usually done by a nurse practitioner that is specially trained in a specific are of medicine, and experienced with reviewing medical records to determine whether there is evidence of malpractice.
Your attorney will meet with you to discuss the results of the review of your medical records, and will either agree to take your case, or will reject it after the review.
If the attorney agrees to continue your case, a lawsuit will be commenced on your behalf. This lawsuit will take years, but if an experienced malpractice attorney has agreed to invest in it, that’s a good sign that the lawsuit will be worthwhile and result in a substantial settlement or verdict.
CAVEATS FOR YOUR MEDICAL MALPRACTICE CASE
If an attorney agrees to take your malpractice case with an hourly fee, RUN. No competent malpractice attorney will ever suggest this. If it’s not worth it for them to invest in, it’s not worth it for you either. Also stay away from attorneys that will invest their time, but not their money, expecting you to put up the money for experts, that could run into tens of thousands of dollars. Make sure that you are hiring an experienced medical malpractice attorney, as these are very complicated cases, and not something that can be learned on the job. If no experienced attorney will take your case, let it go. Sometimes money hungry young attorneys will sign up a malpractice case, but then drop it like a hot potato once they become aware of the complications and expenses, wasting your time.
Still wondering “Why Won’t Any Medical Malpractice Attorney Take My Case?”
At Wittenstein & Wittenstein, we are always here to answer your questions fully. Maybe they were all wrong, and you do have a medical malpractice case? Please call us for a free consultation at 718=261-8114. You’ll be glad you did.