If a Doctor Injures You
or a Loved One
By Jack H. Olender, Esq. This article has been published in The Washington Afro-American, The Washington Sun and The Metro Herald.
A favorite myth perpetuated by the medical and insurance industries is that the American public is too enamored of lawsuits. The truth is, when it comes to medical malpractice, not enough lawsuits are filed. Every year hundreds of thousands of Americans receive negligent care by doctors and hospitals. But less than one in ten instances of medical malpractice is ever prosecuted, usually because malpractice victims don't know their legal rights or how to exercise them.
Identifying medical malpractice. Medical professionals and institutions are required to abide by certain standards in treating patients. If they deliver substandard care, and you are harmed as a result, you may have cause to bring legal action against them. Some medical malpractice cases are tragically obvious. Among those they've handled is the death of an eight-day-old who was literally cooked to death by an overheated incubator that nurses knew was broken. Much medical malpractice, on the other hand, is not obvious -- at least not right away. A child may have cerebral palsy for years before it is discovered that the condition was caused by malpractice during labor or delivery.
Seek legal counsel promptly. In medical malpractice cases, time is of the essence. Every jurisdiction has time limits -- known as "statutes of limitations" -- on filing malpractice or wrongful death lawsuits. Statutes of limitations vary widely from less than six months to three years or more depending on the jurisdiction. Statutes for babies and other children are sometimes longer.
Prompt action may determine whether you are eligible to file a claim and will make your case more attractive to an attorney. Most good lawyers are busy and need ample lead time to prepare a lawsuit. Even if you think the statute of limitations in your case has expired, call a lawyer anyway. Time limits in some jurisdictions are more flexible than in others. In some states, for example, the statute runs from the time when the malpractice was detected by the patient, which may be months or years after the injury was inflicted.
For many people, the thought of pursuing a malpractice claim is overwhelming. Some worry about their doctor's reaction, being interrogated by lawyers, or the stress of a lawsuit. As you weigh these concerns, remember: Talking to a lawyer does not commit you to pursuing legal action. Everything you tell the lawyer is strictly confidential. No one -- including your physician -- ever needs to know you consulted a lawyer.
Seek a lawyer who is experienced. Medical malpractice cases are complex and require expertise you are not likely to find among lawyers in family or general practice. You don't want a beginner to learn on your case any more than you would want an inexperienced doctor to perform heart surgery on you.
If you don't know of a good malpractice lawyer, ask people you trust for referrals. Clerks at your local courthouse know many attorneys, and may be willing to give a recommendation. Check legal directories. Among the best are the Martindale-Hubbell Law Directory and Best Lawyers in America. Perhaps the most widely used resource is the Yellow Pages. Yellow Pages ads can tell you that a lawyer is interested in medical negligence cases, but such listings are no guarantee of experience or competence.
The initial meeting. Most medical malpractice law firms take preliminary information from prospective clients over the telephone. If the attorney is interested in your case, you will be invited for an initial no-cost consultation.
For many lawyers, a person's promptness and cooperation is a big factor in deciding whether to take a case. Arrive on time for your appointment. Bring along any medical records you have. Do not withhold any information that might possibly be relevant to the case.
While the lawyer is sizing you up, size up the lawyer: Does he or she seem to be knowledgeable, communicative and friendly? Does he or she listen to you? Has the lawyer had much experience with your type of case? If so, what has been the rate of success? Is there a sizeable medical library? Does the office appear to be clean and well run? Notice, too, whether you are feeling pressured. A good attorney usually has plenty of business and will never pressure you.
Expert Witnesses. During the meeting, ask the lawyer about whether he or she has medical experts available to evaluate your case. If the answer is "No" or "Not yet," or if the lawyer intends to use an expensive consulting service, your case is off to a weak start.
Experienced malpractice lawyers are usually willing to handle cases on a contingency basis, which means you pay a percentage -- usually 33% -- of your recovery only if the case is successful. If the lawyer generally works on contingency but is unwilling to do so for you, it may signal a lack of confidence in the case. In that instance, it is probably not worthwhile to bring suit, at least with that particular attorney.
Costs. Ask the attorney about payment of case costs, which can run into tens of thousands of dollars. Most successful malpractice law firms are prepared to advance costs, if necessary. These are reimbursed if the case wins or settles.
Legal next steps. Because each medical malpractice case is unique, it is impossible to predict the duration or outcome of a particular case. Generally, cases pass through one or more of the following stages:
Investigation. If you and the attorney decide to move forward, the attorney will initiate an investigation by obtaining your medical records and sending the records to medical experts. The experts will review them and give their opinion on whether the injury was due to negligence.
Filing suit. If your lawyer is satisfied that the investigation substantiates your claim, a legal document called a Complaint or Petition or Claim is submitted to the appropriate court or administrative agency, making you the plaintiff in the case. Thereafter, the alleged malpractitioner becomes the defendant.
Discovery. During discovery, plaintiffs, defendants and witnesses give sworn answers to attorneys' questions about the case in writing (interrogatories) and in person (depositions).
Settlement. Most lawsuits are settled before they reach trial. If settlement is an option, you and your attorney must have a frank discussion about your chances of winning in trial, and what level of compensation is acceptable. Based on similar cases and the individual circumstances of your injury, your attorney should be able to estimate the value of your case. Although your attorney may have a strong recommendation on whether or how much to settle for, the decision in this matter is yours. Settlements are reached at any stage of the process, even after trial has started.
Trial. If no settlement is reached with the defendant, your case goes before a judge and, usually, a jury to decide. Malpractice trials can last a few days to several weeks.
This summary of the legal process is rudimentary. Each case is unique and each jurisdiction has different procedures. To determine the likely course of your case, ask your lawyer.
Confidentiality. Speak about your case only to your attorney and staff. Anything you say to anyone else might be used to discredit your case. For example, a client of mine who was compulsive about sending thank you notes sent a flowery thank you to the doctor she was suing for malpractice! Naturally, the defense used the note to argue that the client was satisfied with the treatment she received. (She was not.)
Awaiting resolution of your case. Medical malpractice cases take time -- anywhere from six months to more than six years, depending on the jurisdiction. Accordingly, patience is essential. Satisfy yourself that your lawyer is doing what is necessary, but avoid harassing him or her with too many calls. If you believe your case is not receiving the attention it deserves, talk it over and clear the air. If you aren't reassured, seek counsel elsewhere.
Except at those times when you must focus on the case, let yourself forget it, if you can. Allow yourself to live as normally and enjoyably as possible. One word of caution: If you are considering a major change in your life, such as moving out of the area or changing your relationship status, inform your attorney. Report any changes in your health status, address, telephone number, etc.
Without question, pursuing a case against a negligent doctor or institution is a major commitment of time, energy, and resources. The process is slow, sometimes difficult, and offers no guarantee of success. That said, the rewards of pursuing legal action often far outweigh the costs. Only when victims of medical malpractice stand up for their rights can they receive financial compensation for their injuries. Pressing a legitimate claim sends a message that the perpetrators of medical malpractice will be held accountable. Every victim who steps forward strikes a blow against negligence and injustice, and makes us all safer.
Washington malpractice lawyer Jack H. Olender was elected Lawyer of the Year by the D.C. Bar Association, and Trial Lawyer of the Year by the Trial Lawyers Association, D.C. He has prosecuted to a verdict or settlement more than ninety cases upwards of a million dollars each.
Copyright © 1996, Jack H. Olender