Posted by Bill Sandweg.
Doctors and hospitals win 85% to 90% of the medical malpractice cases that go to trial in Arizona and that statistic is true pretty much across the United States. Doctors and hospitals win more than half of the cases even when the patient’s case is a strong one. One of the many reasons doctors and hospitals do so well at trial is the quality of the lawyers the insurance companies hire to defend them. If you are going to beat a doctor or hospital at trial, you had better have a darn good lawyer presenting your case for you.
The companies that insure doctors and hospitals are quite sophisticated. They are dealing with a specialized area and are knowledgeable about it. They hire good, experienced adjusters who understand medicine. They have doctors to serve as resources when they have questions about medical procedures or about whether the doctor in question made a mistake or not. Often they have doctors on their Board of Directors.
The point is that they know what they are doing. They hire only the best trial lawyers to represent their insureds. They usually have a list of trial lawyers and will only allow lawyers on that list to take their cases to trial. You have to be a seasoned, skillful attorney who has proven your ability in many trials to get on one of those lists. If, in spite of all the screening they do, they find a lawyer on the list can’t cut it, that lawyer is taken off the list and gets no more cases from the insurance company.
The defense medical malpractice bar is overall the most experienced, most competent trial bar around. They try a lot of cases and have enviable won/loss records. Keep this in mind when selecting a lawyer to go up against them on your case.
Over the years, I have written about what makes a good medical malpractice lawyer. The first and foremost quality of a good medical malpractice lawyer is that she or he is a good trial lawyer. Good trial lawyers are made, not born. That is not to say that natural talent plays no role because it plays a big role. However, no matter how talented you are, you will be a better trial lawyer in your twentieth trial than you were in your first.
Like the defense medical malpractice lawyers, your lawyer must “know” the medicine. This does not mean that your lawyer has handled exactly the same case before. What it means is that your lawyer understands medicine, medical procedures and anatomy, is comfortable with medical terms, and knows how to do medical literature research. He or she will be able to learn the medicine associated with your case, will be able to find qualified experts to testify for you and will be able to cross-examine the defendant provider and the defense experts, who will always try to baffle your attorney with BS, if they can get away with it. Your attorney has to be able to hold their feet to the fire and pin them down about what happened and their opinions.
Most doctors have a “consent clause” in their insurance policies. Unless the doctor gives written consent to allow settlement, the insurance company cannot enter into negotiations. Your attorney needs to demonstrate to the defendant doctor, the defense attorney and the experts that he or she can get your case to the jury and may win it despite the odds. Doctors who are concerned about the outcome at trial will usually give their consent.
Your attorney must also be able to evaluate your case. If your attorney does not properly evaluate your case, he or she may demand too much money and may pass on a settlement that should have been accepted. On the other hand, if your attorney values your case too low, you may end up receiving less than you should have. Evaluating cases is a difficult job as it involves weighing the contested liability issues, estimating the amount of damages a jury might be willing to award and evaluating the performances of the parties and their experts at deposition and their likely performances at trial. Newbies don’t have the experience necessary to do a good job evaluating.
Lastly, your attorney must be able to negotiate effectively on your behalf. The insurance companies always start low and move up only grudgingly. Your attorney must be able to craft a negotiating strategy that encourages the insurance company adjuster to keep making offers without going too low too fast.
Doctors and hospitals have a lot of natural advantages in medical malpractice suits. You need to do everything you can to level the playing field. Selecting an experienced malpractice lawyer is an important first step.