Posted by John Ager on 21 March 2019.
Below is an article I wrote for the Advocate, the monthly journal of the Arizona Association for Justice, a professional association of plaintiffs personal injury lawyers. It provides advice to lawyers thinking about taking on a medical malpractice case. It has been edited sightly to provide good information anyone who believes they or a loved one has been the victim of medical malpractice case and is looking for a competent lawyer.
Medical malpractice cases are among the most difficult, expensive and hotly-contested personal injury cases to litigate. Such cases are almost always defended by skilled lawyers with significant experience. They often do not settle until the eve of trial, if they settle at all. And, in Arizona, juries find for the defense more than 75% of the time. This is what I tell lawyers to think about when consulting with a prospective medical malpractice client.
First and foremost, be honest about your abilities and qualifications. Like any specialized form of litigation, medical negligence claims are not for dabblers. There are many traps for the uninitiated and many ways for good cases, even in the most capable hands, to go south. Ask yourself, are you really equipped to handle a medical negligence case? Can you efficiently decide whether a claim has merit? Have you litigated a medical malpractice case? Have you tried one? Have you tried any personal injury case? Does your staff know how to manage a medical malpractice case? Can you afford to take on, and potentially lose, an expensive case? Do you know how to identify and retain qualified medical experts who will be effective trial witnesses? Can you master the medicine? Can you effectively manage sophisticated deposition practice? You should be able to answer ”yes” to each of these questions before you even consider evaluating a potential case.
If you can’t, keep in mind most skilled medical malpractice lawyers got that way because of good mentoring and hard work. Substantial personal injury experience will provide a solid foundation for a successful medical negligence practice. In order to take the next step, however, you will need to learn a lot more from a willing mentor who has experience handling such claims. Insurance companies and defense lawyers can spot an inexperienced medical malpractice lawyer from a mile away. An inexperienced lawyer and their client will not want to be on the receiving end of what comes at them during the litigation and eventual trial of a case. Don’t be that lawyer.
It is not easy to get medical malpractice experience these days. Medical malpractice lawyers may take fewer than 1 out of every 100 potential cases they evaluate. The opportunities for trial are even fewer and further between. Most years, fewer than 25 medical malpractice cases are tried in the entire State of Arizona. If you don’t think you know what you are doing, or you aren’t sure, don’t fret. Find someone who does and ask for help.
Do you have a capable office staff? Medical malpractice litigation requires significant human resources. You need capable folks who can manage voluminous medical records. They must understand basic medicine. They must understand the special features of medical malpractice litigation, including the procedural and substantive differences from other types of torts.
Can you evaluate potential medical malpractice cases quickly and accurately? If it takes screening 100 cases to find one that is viable, you need to be able to do this. Here are some things to look for.
First, take an unvarnished look at your potential client. Do you like them? You had better. You are going to be married to them for the next two plus years. More importantly, will a jury like them? Juries have little tolerance for whiners, complainers, folks who are unduly angry or who appear to be telling a story that doesn’t make sense. A client whom nobody likes usually has lost their case long before they walked in your door. It can be tempting to take a case with good liability and damages, but a bad client. However, you must ask yourself how much time and money you want to spend trying to help someone when a jury is unlikely to want to do the same. My advice – don’t do it.
Does the client have reasonable expectations? Are they pursuing the case for the right reasons? Will you be able to manage their expectations – and yours? The management of expectations begins the moment a client first makes contact with your office. They often will have talked to friends who tell them stories about folks who got millions of dollars in a case that wasn’t nearly as good as theirs. Cup of McDonald’s coffee anyone?
Cases get better and they get worse, but they never stay the same. Similarly, a client’s expectations are likely to be somewhat dynamic throughout the course of the case. It is important for you and the client to understand what success looks like both in terms of settlement value and the likelihood of a jury verdict at trial, both of which are unique in the medical malpractice setting. Injuries in medical malpractice cases are inherently less valuable than in other types of tort cases. The verdicts tell this tale.
Significant injury is an important consideration in any complex personal injury case, but even more so in the medical malpractice context given the risk and expense of such cases. One reason is that physicians (and sometimes other health care providers) often have the absolute right to decide whether or not to settle a claim against them. Individual medical malpractice liability insurance policies generally start and end at $1 million, and million dollar cases don’t come around every day. Therefore, unless there is significant risk of a judgment in excess of that amount creating personal exposure for the health care provider, they may have little incentive to settle, especially when considering the high degree of success medical malpractice defendants have at trial. In a case where there will be relatively little risk of personal exposure to the health care provider, a lot of other stars should be in alignment before you decide to move forward.
Is the likelihood of success worth what the clients must endure? Not every instance of malpractice justifies pursuing a claim, even where there is good liability. Medical malpractice cases are exceedingly emotional experiences for the litigants on both sides. I find this to be especially true in wrongful death cases. Folks that have been harmed by medical negligence have already been traumatized once. Litigation will force them to relive their experience again and again for two or more years, with the risk of liability for defense costs at the end of the day. It can be an extreme psychological burden. Clients should be counseled to think carefully about what it is that they really want to accomplish with litigation and whether the emotional cost is worth it.
How complex is the case? How many potential defendants are there? How hard is the medicine? Will a jury be able to clearly understand the issues and do they clearly point to malpractice? Complexity is your enemy. Defendants are permitted to speak in terms of possibilities. You are required to speak in terms of probabilities. The more complex a case, the more possibilities there will be. If a jury finds a case is too complex, or you can’t clearly frame it in a way that makes sense, you are likely to lose.
When does the statute of limitation run? Generally speaking, six months is not a very long time to work up a case to the point where you will have the degree of confidence necessary to file suit. What happens if you miss something, or more importantly, someone, because the information necessary to identify a potential defendant is only available through litigation? When evaluating a case within six months of a limitations period, you should assess how quickly an investigation can determine whether the case is worth pursuing as well as the risk that you might not identify all of the parties who may be liable.
So, what does investigation beyond an initial potential client interview look like? At a minimum, it usually involves a thorough review of all of the relevant medical records with a jaundiced eye. A nurse consultant is a good person to initiate this process. Many medical malpractice lawyers have a nurse on staff who does this. There are services that do it on a contract basis as well. That initial assessment is only meant to give the lawyer a birds-eye view of the medical issues. A lawyer still must take the time necessary to review and understand all of the medical records. There are no shortcuts.
Like eyewitness testimony, medical records can be notoriously unreliable. They may also raise questions that can only be answered once a lawsuit is filed, if they can be answered at all. When that happens, a lawyer needs to anticipate what those potential answers and resulting outcomes might be and assess the relative risks and benefits of going forward in a fog of uncertainties.
If a review of the medical records give a lawyer a high degree of suspicion that negligence has occurred, then it is time to do some medical research. Where you go and what you look at will depend on the issue. Many online resources are available to help you get underway. However, there are likely to be important sources of information which you will not have access to until a lawsuit is filed and discovery is underway. You should be familiar with those sources and anticipate how such information could affect your case.
If the research points in the right direction, it is time to get expert opinions on standard of care and causation. These opinions are expensive and the order in which you do this can save on costs. Sometimes it makes sense to start with standard of care, sometimes causation. Ultimately, however, you will need both before you can decide to take a case.
Do you know where to find those experts? How do you determine if they are going to do a good job? Can you afford to hire these witnesses? It may cost $25,000 or more to get a single expert through trial. Complex medical negligence cases often involve many experts. Don’t forget the cost of deposing defense experts. They can charge upwards of $1,000.00 an hour for their time and you may have to take many long depositions. Even the most uncomplicated medical malpractice case, to the extent such cases are ever relatively simple, is likely to cost more than $50,000.
Experts need to be qualified under A.R.S. § 12-2604. Expert qualification can involve a nuanced analysis, as suggested by recent Arizona case law. E.g., Baker v. University Physicians Healthcare, 231 Ariz. 379 (2013). You must know the law in this regard and it can be murky. When evaluating the qualifications of an expert, always, always err on the side of caution.
When initially consulting with an expert, especially a standard of care expert, it is important to guard against later claims of hindsight bias – that is giving an expert information that is unnecessary to form an opinion which might suggest the outcome you are looking for. For example, if you can shield an expert from information about which side of the case you are on until after they share their opinions, do it. If you can avoid telling your standard of care expert what ultimately happened to the patient after the suspected negligence occurred, do it. Do whatever you can to anticipate and mute the defense that your expert, in forming their opinion, had information which was not available to the potential defendant when they were caring for the patient.
Once you get an expert’s opinions, ask yourself do they make sense? What are the defenses to them? You should spend considerable time testing your experts’ opinions, especially with medical literature if you can, before deciding to move forward. Medical experts are not lawyers. Just because an expert says you have a good case, does not make it so. Ultimately, you need to assess the strength of your expert’s opinions in view of the other strengths and weaknesses of your case.
The defense will almost always have well-qualified, credible experts who will say the opposite of what your experts say. A jury will decide who is right and who is wrong. It does not matter how ridiculous you think the defense expert’s opinions might be, it only matters what a jury thinks, and they will not have the benefit of having lived with the case as you have, or spending as much time as you have thinking about the medicine. Even if the issue seems simple, if a jury concludes two well-qualified experts are offering competing, but plausible, opinions, you likely will lose. The defense experts must be required to stretch in an obviously uncomfortable way for a case to succeed. Before you decide to take a case, you should think about what concessions a defendant’s expert must make in order to appear credible. You should ask the same question about your expert.
Once you obtain favorable expert opinions, have concluded you have a viable case, and are prepared to move forward, what’s next? Well, you may or may not want to make a settlement demand. Generally you won’t. Very few medical negligence cases are ever ripe for pre-litigation settlement. If yours is, you are probably better off waiting to let someone on the defense tell you so after you file your lawsuit.
Some lawyers make the mistake of trying to “shake the tree” by making a demand when they have no intention to follow it up with a lawsuit. Don’t do this. Companies insuring health care providers know a lot about who can try a case and who can’t, as well as who won’t. Do not take a case you are not prepared to take to trial. You risk ruining your reputation as well as your chance of settling future cases when that would otherwise be possible. Tell the insurance companies that you are serious about every case you take by being prepared and able to see it through trial and following through in that fashion when necessary.
Most folks who contact a medical malpractice lawyer have experienced bad care. Many times they have also been the victims of negligence. Unfortunately, bad care or negligence coupled with a bad outcome, even where there is significant permanent injury or death, does not always make a viable medical malpractice claim. Knowing when it does takes good judgment. Knowing what to do next takes substantial resources and experience.