Eric Turkewitz

Medical Malpractice - Vetting The Case

Cross-posted from the New York Personal Injury Law Blog

About 95-98% of medical malpractice inquiries to my office are rejected. Having previously discussed medical malpractice law and the economics of bringing such an action, mostly for the med-bloggers and tort "reformers" who tune in to this station, let's turn to the decision-making process for a short step-by-step. Remember that, since the case will not settle easily, and the painful economics of the contingency fee punish you harshly for picking poorly, the case better be strong. And one can safely assume that, as Ronald Miller points out at the Maryland Injury Lawyer Blog, the doctor or hospital will not admit an error.

1. The Phone Call: Most inquiries don't make it past this stage. Often, the complaint is of a bad result, discourteous conduct that leads to suspicions, or a plain old failure to understand what happened. This can be related to bad bedside manner, or an individual that unexpectedly finds himself listening to complicated medicine while in a state of high anxiety and distress. The potential client often doesn't know how, if at all, the doctor departed from accepted medical practice. (When the call is made by another attorney seeking to forward the case on to me, the rejection rate is lower since s/he has already done a vetting process.)

2. The Interview: You find out more in person than by phone. Some people already have records or portions of records that help to reconstruct what happened. Friends and relatives may have bits and pieces of information that help. The reliability of the potential client(s) can also be evaluated.

3. The Record Review: This is often the first real expenditure, so you have to have a pretty good idea that the matter is worth pursuing. In New York, you'll be hit for 75 cents a page, and the page totals can be daunting for substantial injuries. Then comes the hours of review. Assuming the matter still warrants attention after these three steps, we go to the expert(s).

4. The Expert Review: There is no case without an expert, unless you have a rare res ipsa case. And your expert has to be good, or s/he will get chewed up during a trial. If you hire an expert that is, shall we say, flexible with the standards of care and willing to go the extra mile for you, you will likely find yourself bankrupt. Bad cases don't settle. About 70% of malpractice cases are lost at trial, and juries don't like to bring back verdicts against doctors. The expert who reviews a bad case and tells you "no" is helping you while the expert that tells you "yes" is hurting you. Choose wisely.

5. The Other Expert Review: Remember that the negligence must be a substantial cause of the injuries. It doesn't help you to win the liability phase of the trial if there is no causation. While an internist might be able to testify on the breast lump that should have been biopsied, it is the oncologist that you need for discussion of whether the length of the delay in treatment was significant. There is a good chance you need multiple experts, just to decide if a case should be brought.

This process, a form of which exists in any law office that takes such cases on a regular basis, results in substantially weeding out the bad claims.

Finally -- and this is not an issue often discussed -- those that advocate dismembering the malpractice system and replacing it with some type of no-fault or other system with lower barriers fail to realize that it would result in an absolute flood of matters pouring in, significantly eclipsing that which now exists. But that, I suppose, is a question for another day.

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Posted at 4:33 PM, May 22, 2007 in
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If you know that 70% of verdict will be for the doctor, year in year out, why do you keep bringing weak cases?

Compare to the DA. He is younger, less experienced. He has 200 cases. He has a $5000 research budget for a case, not $50,000. He has a "beyond a reasonable doubt" burden of proof on each element of the crime, instead of your ridiculous "preponderance of the evidence" burden. He has to prove intent for each element of the crime. He has hostile, pro-criminal, criminal lover judges on the bench. He has a hostile, pro-criminal, criminal lover jury.

How come the criminal prosecutor wins 70% of the time, and the rich, experienced, leisurely tort lawyer loses 70% of the time. How come with such a poor track record, your income has 7 numbers, and the DA's has 5 numbers?

The year in year out 70% verdict for the defense represents scienter in a massive, rigged fraud operation, run with the help of judges to whom tort litigators donate for campaigns.
The plaintiff bar owes the doctors of the US a $trillion dollars in abuse of process damages. All civil court judges, and all their employers owe the doctors $trillion for collusion in this massive intentional tort.

Posted by: Supremacy Claus | May 22, 2007 5:17 PM

If you know that 70% of verdict will be for the doctor, year in year out, why do you keep bringing weak cases?

Generally, the weaker cases go to verdict and the stronger cases settle. So the 70% "failure" rate doesn't represent the failure rate for all.


Posted by: Eric @ New York Personal Injury Law Blog | May 23, 2007 12:43 PM

Eric: The same may be said for the weak cases in the criminal law. The strong cases get plea bargained. The criminal trial results in 70% guilty verdicts.

Please, address the valid comparison, despite the higher hurdles in the criminal law.

The criminal trial sets the standard of plaintiff lawyer due care. The failure rate represents a massive tort of legal malpractice by the civil plaintiff bar.

Posted by: Supremacy Claus | May 23, 2007 2:06 PM

Generally, the weaker cases go to verdict

Why don't just give up . Or you can afford to lose money 70% of the time . Oh ya you've invested some money already . So why not roll the dice. Isn't it ?

Posted by: Anirban | May 24, 2007 3:12 AM