How Do You Evaluate A Medical Malpractice Case?

The evaluation of a medical malpractice case begins with a telephone call.  As the facts of the potential case are described by our new client, there are three thoughts running through my mind: (#1) what was the date of the malpractice and has the statute of limitations expired?; (2) what is the deviation from the standard of care by the doctor?; (3) what was the consequence of the doctor’s malpractice and how bad are the injuries?

Without all three factors, there is no point in taking the next step of getting the medical records and I politely decline the case. If all three factors are met, however, the next step will be getting the medical records.

We ask our new clients to sign a power of attorney that authorizes us to sign release authorizations on their behalf and hence, there is only a single form that our clients need to sign.  After we receive the signed power of attorney form from our client, we send the power of attorney with a release authorization to the doctor and/or hospital where the malpractice occurred.  It generally takes two to three weeks to get the medical records from doctors and hospitals and sometimes the medical providers do not give us the medical records that we requested. Hence, just getting the medical records can take two to four weeks.

After we receive the medical records, I review them and call our client if I have any questions about the records.  I then meet with the attorneys and paralegals in my office at a weekly meeting where we discuss new cases.  At these meetings, the attorneys and paralegals summarize the facts of new cases and give an analysis of the issues, such as possible deviations from the standard of care and causation, i.e., did a misdiagnosis cause harm to our client?  The input of all attorneys and paralegals is sought at this meeting and we discuss whether it is worthwhile to send the medical records to a physician for review.  This is the next step in the screening process of new cases.

If there is a consensus that the new case is worth sending to a medical expert to review, we select a physician in the appropriate medical specialty and if the physician agrees to review the case, the medical records are sent to him/her.  Expert reviews of new cases by physicians take two to three weeks on average.  The physician will call us to discuss his/her opinion about the case and whether it has merit.  If the case has merit, I ask the expert about anticipated defenses to the case.  I ask the expert to tell me the good and bad points of the case and to be honest and objective with me.

If the medical expert supports the case, the next step is another attorney’s meeting where we discuss whether to bring a lawsuit. A final decision is made at this meeting.  If the decision is made to bring a lawsuit, I call our client to discuss our evaluation and the procedures involved in litigation.  If our client agrees to move forward with the lawsuit, a summons and complaint and a certificate of merit are prepared and then filed with the county clerk where the lawsuit will be brought.

Generally, very few cases get past the initial phone call with a new client.  The lack of merit of a new case can be determined quickly and easily in most cases. For those cases that go beyond the initial telephone call, the new cases are often evaluated and rejected during the middle stages of our evaluation. Perhaps 1% to 2% of the new cases make it to the final stage of our evaluation, where a physician has advised us that the case has merit and should be pursued through litigation.

It is my goal to keep our clients informed of the progress of our evaluation throughout the process.  Clients should never call us without an idea as to what is happening with their case.