Posted by John Ager on 22 May 2017.
Please indulge me in a rant. Not many things get me riled up more than having a prospective medical malpractice client tell me something like this. “The last lawyer I spoke with told me I had a really good case, but she said she was too busy to handle it.” Seriously? No decent medical malpractice lawyer who has the time to evaluate a potential case is going to turn it down if it is “really good.”
How about his one. “After the last lawyer looked at the medical records he realized he had a conflict because he represents the doctor.” Lawyers are required to do a conflicts check before endeavoring to undertake a matter. In addition, it is rare for medical malpractice lawyers who represent plaintiffs to have a conflict with a physician or hospital. When they do, it is something that almost always can and should be identified before a client and her records set foot in the office. I hear this excuse far too often for it to just be that rare and unexpected situation.
There are a host of other lame and untrue excuses I regularly hear which are nothing more than code for “you don’t have a viable case, but I am too afraid to tell you the truth.” These cop-outs are about the worst possible way to treat people who have been the victims of a poor medical outcome. They come to a lawyer seeking sound and honest advice. That lawyer is often someone with whom they have had no previous experience and in whom they must have blind trust. They want the lawyer to help them understand what happened and why, and all too often that’s the last thing they get.
I turn down about 150-200 cases for every one I take. Half of those involve a prospective client who just wants to hear that they don’t have a case. They don’t want to be confronted with the prospect of having to decide whether to sue a doctor or hospital. In other cases, a prospective client just wants reassurance that nothing could have been done to change the outcome so they can accept it and move on. For those that truly want to pursue a claim, they need to know if it is not viable and a lawyer need to tell them if it isn’t.
There are many reasons why a case may not be viable. More often than not in the cases I look at, there has been some malpractice, but for reasons I have discussed in previous posts and on our website, that is not enough to justify a lawsuit. The damages are insufficient to generate a worthwhile recovery. The liability is too complicated. The cause of the damage is too uncertain. Whatever the reason, when a lawyer turns down a case, the prospective client needs to know the unvarnished reason why so he can make an intelligent and informed decision about what to do next.
Any lawyer doing this kind of work must be prepared to tell the truth. Those who don’t usually justify it by pointing to an unfounded fear that shooting straight with a client may expose them to liability if they are wrong. That’s a lame excuse. In more than 20 years of practice, I have never heard of an Arizona medical malpractice lawyer being sued for telling someone they had a bad case. Moreover, a lawyer can easily protect against a possible lawsuit by explaining how other lawyers may view things differently and encouraging the prospective client to get more than one opinion. Just as it is with medicine, when a second or third opinion provides support for the first, the potential client can have a high degree of confidence with whatever decision they make, and they can make it more quickly. But, the client needs good information for this to work effectively.
Telling a prospective client why they don’t have a case is just as important as the work lawyers do when we sue a negligent health care provider and bring them to justice. Medical malpractice lawyers need to help all the folks that seek their advice, not just those who have a case that might pay for it.