In the over fifty years I have been practicing law, on a few occasions I have succumbed to the temptation to take a case in a field with which I was not familiar. I regret those decisions. I made mistakes due to my lack of familiarity. Thankfully my clients did not suffer any harm from my errors. I hope the lawyers among you learn from my mistakes.
Over the last 45 years, I have spent most of my time working in the area of medical malpractice litigation. I started out defending doctors and hospitals. It was valuable experience and I learned a lot. For the last 35 years I have represented people injured by medical malpractice. While I have learned many lessons, one which stands out is that medical malpractice litigation is no place for dabblers.
This post is addressed to those lawyers who might be tempted to represent a person who has been injured by medical malpractice. I don’t need to address malpractice defense lawyers. No hospital or insurance company is going to hire an inexperienced lawyer to represent them in a malpractice case.
Why no dabblers? In the first place, the medical malpractice field is complex and favors lawyers who regularly handle malpractice cases. Inexperienced lawyers get chewed up and spit out.
The cases involve medical treatment, which has its own arcane vocabulary. One of my first cases involved a child with undiagnosed phenylketonuria. Among other things, I had to learn to pronounce hyperphenylalaninemia and use it correctly in examining doctors about the condition. Stumbling over medical terminology marks you as a rookie.
Not only does medical malpractice litigation require a familiarity with medical terminology, a lawyer representing a malpractice victim is going to have to learn about the medical condition at issue. This almost always means reviewing medical textbooks and articles in medical journals. In every case I handle, I end up with a medical literature notebook of articles and information that is at least six inches thick. The articles themselves are dense, full of jargon, and hard to understand, if you are just starting out.
A lawyer representing a victim of medical malpractice is going to have to cross-examine the defendant health care providers and their experts at deposition and at trial. If the attorney does not have a good grasp of the medical issues in the case and medical principles in general, the defendants and their experts will walk all over him or her.
A lawyer representing a victim of medical malpractice is going to have to line up expert witnesses and should do so during the investigative phase before filing. At a minimum, the lawyer will need to find standard of care experts against each defendant and a causation expert. More experts may be required, especially on the damages issues. Locating qualified experts who will be effective in the courtroom and who meet the statutory requirements for testimony can be difficult.
The attorney will also be required to advance the costs of suit. Expert witnesses are expensive. You have to hire your own experts and pay the defense experts to testify at deposition. I have had cases in which my costs advanced have exceeded $120,000. I know other attorneys who have had to advance over $250,000. This is quite an investment in cases that are difficult to win. A couple of losing cases and you may find yourself in bankruptcy court, and not as an attorney representing a party.
In addition to these hurdles, the legislature has erected its own set. A majority of the people in the Arizona legislature hate medical malpractice plaintiffs. They would love to place caps on the damages a malpractice victim can recover but are prevented from doing so by the Arizona Constitution. Since I have been practicing law, the legislature, the doctors, the hospitals, and the business community have tried three times to get the voters to amend the Constitution to allow caps on damages. On each occasion, the voters have refused to do so. This has left the legislature looking for other ways to favor doctors over patients when it comes to malpractice suits.
Since it cannot cap damages, the legislature has created statutes and rules that apply only to malpractice cases and which are intended to make it harder for a patient to win in court and to keep down the verdict, if the patient is so fortunate as to prevail. These special statutes and rules may come as a surprise to inexperienced counsel. One is a limitation on who can offer standard of care testimony. The plaintiff’s expert must practice in the same specialty as the defendant and have credentials which match that of the defendant, including board certification, if applicable. Many cases are tossed out for a violation of this statute as the parties differ over what is the appropriate medical specialty.
The legislature has also abrogated the collateral source rule, but only in medical malpractice cases. This allows the defense to inform the jury that the medical expenses of the plaintiff have been paid in whole or in part by insurance and to suggest that no award for them is necessary. Juries find this argument quite appealing.
If you find qualified experts and survive the various motions to dismiss and for summary judgment, you will have earned the privilege of presenting your client’s case to the jury. You will find the jurors skeptical of malpractice cases after years of being bombarded with the message that doctors are being driven out of business by frivolous malpractice cases. Additionally, juries do not want to believe doctors and hospitals kill and injure people. It is more reassuring to find that the plaintiff’s injury was just one of those things and that the doctor or nurses did the best they could.
As a result, doctors and hospitals win 85% to 90% of the cases tried in Arizona so a critical skill is the ability to identify those cases the doctors and hospitals and their insurers are going to want to settle before trial. That skill is only developed through experience.
Medical malpractice cases are difficult and full of traps for the unwary. If you have what you think is a strong malpractice case, either refer the case to someone who is experienced or associate an experienced attorney. Don’t join your client in the victim club.
The post Hey, Lawyers, Resist The Urge To Dabble appeared first on Sandweg & Ager PC.