Posted by Bill Sandweg on 23 July 2018.
From time to time over the years, John and I have written about the necessary elements of a viable medical malpractice claim. There must be fairly clear evidence of medical negligence which caused a significant injury. Doubts about the existence of the medical negligence or whether it caused the injury can be fatal to a malpractice claim. Even if you have a strong claim, however, you need one more thing. You need a good malpractice lawyer.
Medical malpractice claims are among the most complicated and most expensive claims an individual can be involved with in our civil justice system. The Arizona legislature has gone out of its way to create special rules to prevent victims from getting the justice they deserve. Many of these rules apply only to medical malpractice cases. Familiarity with these rules is critically important. Missing a deadline or failing to properly follow a rule can result in your case being tossed out by the judge. It is very difficult for a lawyer, who may be a very good lawyer in other fields, to be familiar with the malpractice rules and follow them carefully, if he or she does not regularly practice in the area of medical malpractice. This is not an area for dabblers.
In addition to knowing about the special rules and how they have been applied by the courts, a good medical malpractice lawyer must be very familiar with medical terms and procedures. The defendants in a medical malpractice case will have gone to four years of medical school and usually have had a three year residency. They may have also had a fellowship or two. In all likelihood, these defendants will have forgotten more about medicine than most lawyers will ever know. A lawyer who is not familiar with the practice of medicine, with the principles of anatomy, with medical terms, and with medical procedures, will get run over by the defendant doctors and their experts. This is not an area for those who don’t know their stuff.
As I mentioned, the cases are expensive. A plaintiff will need separate expert witnesses to testify against each of the defendants. The plaintiff will also need an expert to testify that the medical negligence caused the injury in question. The plaintiff may need more experts to quantify the future medical bills and future loss of earnings or of earning capacity. In the first place, the malpractice lawyer will have to locate these experts. A lawyer who does not regularly represent victims of malpractice is going to have a hard time finding well-qualified experts to testify on behalf of the client. Secondly, after the malpractice lawyer has located these experts, he or she must be able to pay them to review the records, to confer about the issues in the case, to prepare for discovery testimony and to appear at trial, should the case go to trial. Since these experts are often charging $800.00 an hour, the malpractice lawyer has to be able to advance substantial sums on behalf of the client. Not only must the lawyer be able to afford to pay the experts he or she has hired, the lawyer must be able to afford to pay the experts hired by the defense to give discovery testimony. These are not cases that can be prosecuted on the cheap by lawyers who do not have substantial financial resources.
Lastly, the malpractice lawyer must be an able and effective trial lawyer. The insurance companies that insure health care providers and the lawyers who defend these cases, can spot an inexperienced lawyer a mile away. If they don’t think the lawyer for the patient has what it takes to successfully win the case in front of the jury, they will make low or no offers and force the lawyer to either drop the case or go to trial and prove it. As with all other parts of a malpractice case, putting on a successful case for a patient at trial is not for the inexperienced.
If you or a loved one believe you have a medical malpractice case, don’t go to any lawyer until you have checked out their background and experience. Any good malpractice lawyer will have a web site which discusses his or her qualifications and experience. No good malpractice lawyer will hold themselves out as experienced and willing to take cases in lots of other areas of personal injury. As I stated above, this is not an area for dabblers who say they handle all kinds of cases. Make sure any lawyer you consider specializes in medical malpractice. Every good malpractice lawyer will welcome the opportunity to discuss his or her experience level with you so don’t be hesitant to ask. At a minimum, you want to ask what portion of the attorney’s practice is devoted to medical malpractice matters and how many malpractice cases they have tried.
If you have a good malpractice case, don’t throw it away by hiring someone who is not a good, experienced medical malpractice lawyer.