When a prospective client calls me, quite often I can tell as soon as I hear the facts that this is not going to be a case I can take. The patient was too sick to survive the treatment, or it is unclear who did what, or the statute of limitations has already run, or the injury was too small, etc. There are many reasons that may be clear right away why I cannot take a case. However, if the case sounds promising, I will begin an investigation.
It takes time to investigate a medical malpractice claim. As I discuss the steps I must take, you will see why I usually need at least 90 days to investigate a case and prepare to file a lawsuit. This is why it is important to call a lawyer sooner rather than later when you think you or a loved one has been the victim of medical malpractice. Even if the statute of limitations has not yet expired, there may not be enough time for me to do a thorough investigation and file suit before the statute runs. I run the risk of being sued for malpractice, if I allow myself to be rushed into a less-than-thorough investigation because the statute of limitations is about to expire. I won’t even begin an investigation, if I see I won’t have time to do a thorough one. Arizona’s statute of limitations for personal injuries, such as medical malpractice, is two years from the time of the malpractice, although there are exceptions which can both shorten or lengthen the time period.
The first step in my investigation is a thorough review of the medical records. I prefer to have the prospective client get the medical records for a couple of reasons. In the first place, it is quicker for the client to do it than it is for me. When lawyers are involved, the healthcare providers always seem to drag their feet. Secondly, I would rather the prospective defendant healthcare provider not know we are investigating. This sometimes results in us getting records that are different from the ones the defendant turns over after suit has been filed. When this happens, it is always a good thing for our side. I don’t need to see every record for the patient for the last ten years, but I do need to see all of the records which bear on the alleged malpractice. This may mean obtaining records from more than one provider.
Unfortunately, not infrequently the medical records do not match what the prospective client told me had happened. When this occurs, the records trump what the client recalls. Unless it is clear that the records have been altered or are inaccurate, I know the jury is going to treat the records like the word of God. I cannot take a case in which good medical records do not support the client.
If the records show questionable conduct by one or more providers and a significant injury, it is time to consult with expert witnesses. As I discussed in the last few posts, in order to be successful for my client, I am going to have to prove that a provider fell below the standard of care and that the breach of the standard of care caused a significant injury to the client. Unless one expert can testify on both standard of care and causation, I am going to need to consult at least two experts. I must also consult separate standard of care experts for each healthcare provider whose conduct is being questioned. It is important to identify all of the providers who may have committed malpractice which contributed to the injury. I may end up consulting five or more experts, all of whom charge over $500 per hour to review records and talk with me.
I always consult well-trained and highly qualified experts. I need them to tell me the case is a strong one. If they cannot, then I know my client’s chances in front of a jury are poor and I won’t accept the case. I don’t engage in expert shopping looking for someone, anyone, who will support the case. Some lawyers do. Only strong cases have a good chance of winning at trial and it is only cases with a good chance of winning at trial that the doctors, hospitals and insurance companies are going to want to settle.
After I have satisfied myself that I have good, strong expert testimony on standard of care and causation, I can consider damages. I will need witnesses to testify on damages. Sometimes, these may be the same people who testify on causation, but in a large case with big injuries, I will need non-medical people to tell the jury about the economic and other losses suffered by my client, including the cost of future medical care.
After lining up the experts I am going to need, it is time to prepare the complaint. In an ideal world, the client has come to me early enough that I have many months before the statute of limitations expires. I want to file early because sometimes defendants blame other providers who were not named in the suit for what happened to the patient. Defendants have 150 days from the filing of their answer to name one or more of these people whom they claim are wholly or partially at fault for the injury. I need to have filed and served at least six months before the statute of limitations expires to be sure I will have enough time to add the non-parties to the suit. If the statute of limitations has already expired by the time the non-parties are named, it will probably be too late to add them and that may significantly affect the outcome of the case.
As you can see, there are a lot of expensive and time-consuming steps which must be taken to properly investigate a medical malpractice claim. People who believe they or a loved one has been the victim of malpractice need to choose an experienced lawyer, who is able to conduct a good investigation, and give that lawyer as much time as possible to do the investigation and file the complaint. The longer the client takes to get to the lawyer, the greater the likelihood the delay will affect the outcome.
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