Many of our medical malpractice clients come from referrals made to us by other lawyers and law firms. I am grateful for the trust and confidence these lawyers have in our ability to evaluate a situation, identify a claim and litigate it to a successful conclusion. Most folks, however, are surprised to learn that we look at about 8-10 potential cases each day and are only able to take about 1 out of every 250. That does not mean there was no medical malpractice in the other 249. Quite the contrary. Unfortunately, most of the time the malpractice is there, but something else is missing. So, what makes a case a case and how do we go about figuring that out?
Today, a very good personal injury lawyer who regularly refers us potential clients asked me that very question. He was wondering what we look for and how we can tell when a claim is not likely to be successful. He wanted to know how he could identify a case that was worth investigating further earlier in the process so he wouldn’t bother us with frivolous referrals. That’s no easy task. The image above should really read “How Good Lawyers Evaluate Medical Malpractice Cases.”
First, I told him there is no such thing as a frivolous referral. One of the most important parts of my job is telling a prospective client, with a very high degree of confidence, that they do not have a viable medical malpractice claim. I suspect that 50% of the folks who come to me want to hear that. They don’t want to sue their doctors and they don’t want to to think a bad outcome happened which could have been prevented because someone screwed up. They often come to me because don’t want to be left wondering whether they should have done something after the statute of limitations has run and its too late.
Unfortunately, all too often I meet with folks who have already spoken with a reputable lawyer who says they have a great case, but the lawyer is too busy to handle it. That is just bald lie which causes folks more harm than they have already suffered. It is not helpful or polite. If a lawyer is meeting with a potential client, that lawyer has time to take a good case. Lawyers do not turn down good cases – period. “Too busy” = bad case = a lawyer too afraid to tell a potential client the truth. A prospective client has a right to the unvarnished truth, even during a free consultation. If you can’t tell, this all too common practice is more than a pet peeve of mine.
Second, I told him the ability to efficiently and correctly evaluate a medical malpractice case only comes with experience. Each case is unique and many variables must come into alignment for one to be viable. In my view, only someone with many years of experience litigating medical negligence claims can understand why a case is likely or not likely to be successful in the early stages of investigation. It is not something that can be taught or explained in an hour to two.
Prospective clients often come to me with a story of how an experienced personal injury lawyer, often one I respect, spent many months and thousands of dollars investigating a case, only to decide it was not something they were willing to pursue. Many times I am able to conclude the same case is not worth pursuing right away simply based on what the prospective client has to say. A lawyer’s inexperience in medical malpractice case evaluation often leads to an unnecessary waste of time and money for the lawyer and a source of needless anxiety for the prospective client.
Early and accurate medical malpractice case evaluation is simply not so simple. Like a former partner of mine used to say, “If it were easy, everyone would do it.” Unfortunately, many lawyers do not know enough to know when they don’t know enough.
In my next blog, I’ll explain the process we go through in the early evaluation of a case and try to provide a few examples of what we look for – what makes a case a case.
