A common mistake lawyers make in our communications with people is to assume that people understand what we have said or already know something that was left unsaid. Too often in our jury trials we use abbreviations or acronyms assuming everybody understands their meaning when they don’t. The more experience we have and the more we know about a subject, the greater our tendency to forget to clearly, completely and simply explain it to others.
When we are meeting with new clients it is important that we give a full and complete explanation of what to expect. Not only is it an objective for “informed consent” on our part, it is an obligation we have to prepare our clients for what’s ahead. Clients who are contemplating hiring us are also entitled to know what to expect. After numerous conferences with clients and potential clients it is easy for us to forget to give the full explanation each new person is entitled to receive from us. The best way to deal with this is with a checklist for each type of case we typically handle. By referring to it we can be assured we have covered the major points the client should know about.
The following is a general outline or checklist regarding a medical malpractice case. You should modify and revise it for your jurisdiction and law practice.
Written contingent fee agreement
Washington state legally requires that all contingent fee arrangements with the client be by written agreement. Even before this became a legal requirement, our firm’s policy was to have a signed written fee agreement. The agreement should spell out all of the relevant particulars of the arrangement. It should be reviewed with the client. The fee arrangement with the client should be outlined in the agreement and clear language. An explanation as to why the fee in a medical malpractice case is generally more significant than that in of other cases is helpful to the client. The length of preparation and trial, as well as the fact the lawyer is advancing the costs are important factors in this regard.
Expenses & costs
In reviewing the written fee agreement it is important to explain the provision relating to out-of-pocket costs. The client should understand that the out-of-pocket costs for fees to medical experts & court reporters, the expense of obtaining copies of medical records and payments made for necessary documents or materials is always very substantial in medical malpractice cases.In our state, we would probably advise that once a case has been accepted the average out-of-pocket costs incurred to the time settlement discussion averages between $100,000 and $250,000. The average out-of-pocket costs incurred from the time the case begins to the completion of a jury trial averages between $300,000 and $500,000 depending upon how long the case takes to try and can be more in some cases.
We tell the client that we realize that almost all of our clients are unable to pay for these out-of-pocket costs. Our practice is to pay these expenses for our clients and deduct when settlement is made or the money collected. The client should be told they will be given full particulars in this regard.
Our policy is to send copies of the bills as well as other materials generated in the case to our clients. If they decide they would rather not receive this kind of information they should advise us.
The client should be told that the preparation of malpractice cases involves collecting all of the relevant medical records from both doctors and hospitals as well as any other treating health care provider. The records must be organized and reviewed by qualified medically trained people who index and summarize relevant records for the lawyer. Consultation with qualified medical experts after their review of relevant records is essential to determine liability and medical injury evaluation. This evaluation by the lawyer based on this information is the factor which determines whether the case has sufficient merit to proceed. The lawyer will analyze the potential settlement value of the case and determines the plan handling of the case generally. The evaluation process is a continuing and ongoing one as more information is obtained. At all stages it will involve consultation with the client.
Obtaining relevant information
The discovery of relevant information about the case involves the taking of sworn testimony (deposition) of the involved healthcare providers as well as the patient and family members. It also involves taking the sworn testimony of the medical experts for both the patient and the defendants in the case. This is both very time-consuming and expensive because the medical experts are entitled to a fee for their time and the court reporter charges for recording the testimony and providing a typed copy to the attorneys. We will prepare you for your deposition and be with you when it takes place.
Review important points
The client discussion should include a review of some of the following factors that apply to a medical malpractice case:
- There is a time limit for filing a malpractice case called the “statute of limitations”
- The law requires sworn testimony from a qualified medical expert that malpractice has occurred or the case will be dismissed before ever going to trial. The defense has an almost unlimited source of experts to testify that there was no malpractice. The plaintiff has difficulty finding qualified medical experts, especially local ones. Finding qualified medical experts is one of the more difficult challenges the lawyer will perform for the client.
- It is important the client knows that statistically 80 to 90% of all malpractice cases that are tried to a jury are lost in this state. There are no guaranteed malpractice case results.
- It is not uncommon to have doctors and nurses to cooperate in providing a defense to the defendants. Sometimes proving the truth can be difficult.
- Malpractice cases require proof of two essential factors: (1) there was a failure to meet the standard medical care required in this case i.e. “negligence” and (2) this failure to comply to the standard medical practice was a cause of the harm done to the patient. Therefore, not only does the patient have to prove there was negligence, the patient has to also prove that the negligence was in fact the cause of the harm complained of. It is not uncommon, in medical malpractice cases, for the defendant to maintain that even if there was a breach of medical care it wasn’t the reason for the outcome and therefore they are not responsible legally.
- Patience is required by the client and medical malpractice lawsuits. The average time, from our acceptance of the case, to the time the case has been settled or tried is about 1 ½ to 2 years. This is due to the court system involving the scheduling of cases as well as the time required to collect all of the information necessary.
- The majority of malpractice cases are settled out of court, but there is no guarantee that a case will be settled. Every case should be approached as if it will go to trial.
- On the other hand, in virtually every case, there will be a settlement discussion with the defense and their insurance company. This normally is in the form of a joint meeting called “mediation.” This process involves a trained and knowledgeable person known as the mediator who conducts the discussion. Usually, this is done by having the different sides of the case in separate rooms and the mediator going back and forth. When a mediation is scheduled we will spend sufficient time with you to completely review the process and prepare you for it.
This obviously is an incomplete outline of what the lawyer might discuss with a client or a potential client at the initial conference. However, it is important to review the key facts with a new client or potential client in a medical malpractice case. Unhappy clients are often the result of our failure to prepare them and fully inform them as to what to expect in these cases. Having an existing checklist for each case you commonly handle the office is an effective way to make sure there has been full and complete communication.