Why Most Medical Malpractice Victims Never Recover a Dime - Part 6

How Do I Decide What Cases to Take?

The answer is that I have some rules. They're not perfect. I get many more medical malpractice inquiries from injured patients and their families than I accept as cases. Here's how I decide which cases to accept.

First, I have rules about what I don't do. I don't:

• talk to potential clients calling for the first time
• take unplanned inbound calls (unless in active negotiations on a case)
• give free consultation; we either reject the case or the client signs up.

I have to make decisions about where my time is invested and I think my time is best invested at certain critical points over the life of a case. These are the high value points that are the reason people call me.

Our office assistants do a complete "who, what, when, why and how" report. I review this and ask: does this sound like a case that I could tell you about in a social setting and expect you to say "that's awful, it shouldn't have happened"? The point here is that the more complicated the case, the more likely the defendant is to win.

The most common reason I will reject a case is that it doesn't have enough value. Case value on settlement must be at least $100,000, and permanent injury and disability is required to achieve this value.

Some of the other reasons I may reject a case are:

• a multi-specialty, multi-expert case
• a wrongful death case with no autopsy
• a wrongful death case with no significant financial dependents left behind
• the presenting injury before the doctor got involved is a complex and large injury itself.

If the medical malpractice inquiry passes this screen, then I will either have the client obtain the medical records or send in a deposit and signed consents to enable my office to obtain them. When I have the records, I will meet with the client.

Some cases fall away when I compare the client's story with what the records say. If not, the next step is to submit the records to an expert.

There are several options here. The initial reviewer could be a screening expert who is not in the same specialty as the questioned doctor or could be an expert in the same specialty (a "peer"), who may also be asked be asked to testify. It depends. Sometimes a nurse consultant is the right screening expert.

I will usually ask the expert reviewer for a telephone consultation before their opinion is committed to writing. If the case is robust on negligence, causation of the injuries, and the dollar value potential of the injuries (damages), then I will agree in writing on fee and case expense arrangements with the client, and issue a Statement of Claim in court. I often will not obtain a written report from an expert whom we intend will testify before doing this. The known facts of the case will change with the examination for discovery of the defendant, and the expert report is more useful when our testifying expert knows the defendant's version of the story.

As to discovery examinations, my own experience is that we win the case on discovery. Medical malpractice defendants don't want to go to trial if they are likely to lose, and discovery is where the savvy lawyer for an injured patient shows the defence lawyer and the defence experts that they are likely to lose. You can't expect them to figure this out for themselves. Your lawyer must be able to establish, on the typewritten record of the discovery examinations, through skillful cross-examination, enough admissions inculpating the defendant doctor that the very tough and knowledgeable lawyers and defence organizations massed against the plaintiff will decide the defendant doctor is likely to lose.

So I have rules about what cases I take and sure, I may pass over some good cases. But rules simplify life and there are more people out there who want my help than I have time to help. I'm not the right lawyer for everyone, but when the right client finds me, it usually results in a satisfied client and a lawyer proud to have helped.