How do you get a good medical malpractice attorney to take your case? We wish there was a simple answer but as with most things legal, it can be complicated.
Consult a Good Malpractice Attorney
The first step is to make sure that you are consulting with a good malpractice attorney. Some lawyers will list medical malpractice as one of their practice areas even though they do not have much experience handling those types of cases. You should look for attorneys who have a track record of trying medical malpractice cases.
Ask: How many medical malpractice cases have you tried and when was the last medical malpractice case you tried?
Malpractice cases that are viable, and importantly, ones which could succeed if taken to court, are few and far between. Not every unfortunate medical outcome, or even series of mistakes made by a doctor, hospital staff, or team of surgeons, leads to injuries or damages that result in awards sufficient to cover the amount of time and expense involved in malpractice litigation.
This is why medical malpractice attorneys must conduct a thorough investigation into potential cases, including a review of all of the relevant medical records, an assessment of the provable damages, and consideration of the anticipated time and case expenses involved to prove what happened and why it was wrong.
In addition, potential clients must be able to reasonably participate in preparing their cases. This means providing records and information as required, responding to requests from the malpractice attorney’s staff, answering questions during the discovery process, and attending meetings and events when necessary for the case. In a malpractice claim, there are many personal details that must be shared, which can be difficult for many people.
Hiring any attorney requires trust and confidence – on both sides. An attorney-client relationship is just that – a relationship. It requires both parties to understand their responsibilities and undertake them in a professional manner.
What is the Hardest Element of Malpractice to Prove?
It is often stated that proving that the standard of care has been breached is the most difficult aspect to proving a medical malpractice case, but, in our experience, it is critical that first the causal relationship between the injury and the actions of the professional can be proved.
If a medical expert cannot adequately relate the injury to the medical practitioner’s negligent action or inaction, malpractice may not be proved.
A patient with multiple complicated medical conditions is prescribed a medication that was contraindicated because of one of the patient’s conditions other than the one for which the medication was prescribed. The patient’s overall medical condition worsens, and the patient’s family claims the patient’s condition worsened by the prescription.
But, can that be proved? Can a medical expert show, through the medical records and available evidence, that the patient’s medical condition is BECAUSE of the incorrect prescription? Or, because of the patient’s starting point, would the patient have been just as bad off if the incorrect prescription had never been prescribed?
Medical experts are required in medical malpractice cases to provide their expert opinion to substantiate claims that injuries and damages are related to the care provided, and then further to testify that the standard of care was breached.
As you can see, this is not a simple process, and many potential cases do not survive the close scrutiny of an investigation of the facts and review by a medical expert.
Tips to Get Your Malpractice Case Accepted and Not Declined
First, understand that not every medical error is something that a malpractice attorney will be able to take. Because of the significant time and expense needed to bring any of these cases, there must be serious injury and damages.
Medical malpractice case review is a multi-step process that starts with the initial phone call or website inquiry. Some decisions are made very quickly. Others can take weeks or months.
At each step providing the information the medical malpractice attorney needs to evaluate the case will maximize your chances of having your case accepted.
Best Practices in Hiring a Malpractice Attorney
Most malpractice attorneys work on a contingency fee basis. They make initial decisions concerning case acceptance based on many factors. These include available time, anticipated costs, probable difficulty of litigation, perceptions of wrongfulness of the potential defendant’s conduct, estimated damages to be claimed, projections of provable facts, current client commitments, and multiple other factors.
- Contact the medical malpractice attorney as soon as possible – if you wait too long the case may be barred by the statute of limitations deadline
- Provide a thorough description of what happened and why you think it was wrong, including dates and participants to the events. Attorneys need a good starting point to accept a case, such as when the subsequent treating doctor is critical of the first doctor
- Collect your medical records and radiology studies. This is the most important evidence in a medical malpractice case and good medical malpractice attorneys will need to see the records
Be responsive to the malpractice attorney’s questions – if they are asking, there must be a reason; they need to figure something out to see if they can help you.
Handling a Rejection by an Attorney
Is a declination decision final? Most often, yes.
If a medical malpractice attorney has considered your case, and declined to represent you, that is usually the end of the inquiry with that lawyer. However, occasionally, new information or evidence may change the situation, allowing a previously declined matter to be reconsidered. If you think your case should be reconsidered by the medical malpractice attorney, you should contact the lawyer with your new information.
Please remember that although one law firm may decline a case, another lawyer may be able to assist you. Decisions can be based on limited information, and other attorneys may reach different conclusions or have different availability to take on a new case at the moment. It is not uncommon that one attorney will accept a client who was turned down by another malpractice attorney.