Archive for March, 2009
Over 60% of malpractice cases are decided in favor of the defendant. The majority of cases are not decided by chance but by the actions of the attorneys involved. Simple, preventable errors make the difference between winning and losing.
>Reasons for Losing Cases
The three main reasons why plaintiffs’ attorneys lose cases:
1.) The complaint was without merit and the action should never have been commenced, because there was no departure from good and accepted practice. Medicine and Dentistry are not exact sciences, and the best-planned treatment can end disastrously. Bad results alone do not make a prima facie case. Every successful malpractice action begins with an identifiable departure from good and accepted practice.
2.) Failure to secure the assistance of a qualified medical or dental expert, who can give reliable guidance during the conduct of the case and can testify effectively. Do not commence an action until you have secured a competent medical or dental expert.
3.) Failure of the attorney to acquire a thorough grasp of the technical, medical or dental questions involved. Like the law, medicine and dentistry cannot be learned by home study or seminars. Only thorough, in-depth research and interpretation of the literature can adequately prepare an attorney to conduct a malpractice case.
If you avoid these three fundamental mistakes, you can more than double your chance of winning.
How do you avoid these errors?
1.) Either before you accept a case, or while you can still amend the pleadings, and certainly well before the statute runs on any possible defendant, obtain a reliable analysis of the case and an opinion as to its merit.
2.) Secure the assistance of the best medical or dental expert available, even if it means paying more. There is no second prize in a malpractice action.
3.) Utilize all the facilities at your disposal to familiarize yourself with the technical details of your case. You must obtain the latest and most comprehensive literature and by all means seek assistance from your expert or someone who can explain it in terms you can understand. Before you commence discovery, you must know as much about the technical questions involved as possible.
The most important of these three is the second, getting the best expert witness you can find, because a good expert can get you over the other two hurdles. A medical or dental malpractice case is no better than its expert witness.
What do you look for in a good expert? There is probably no such thing as a perfect expert, who is ideal for every case. The inexperienced physician or dentist may make costly errors, but the experienced testifier may be attacked as a hired gun. The big city professor may be resented by the jury as an outsider, but the local doctor may take a dive under political pressure.
What are the qualities that make winning experts?
1.) He or she should be certified by a recognized specialty board.
2.) The expert should have at least five years experience in clinical practice or teaching and not have been retired for more than two years.
3.) He or she should have an impeccable reputation in the medical or dental community and, preferably, a connection with a medical school.
4.) The expert should have the ability to identify legal as well as clinical issues in a case and to explain them in simple, understandable terms.
5.) He or she should have testified at least once before, so the expert is less likely to waffle or panic under attack by opposing counsel.
6.) He or she should be located far enough away form the situs of the action to be beyond reach of the local, medical or dental establishment but close enough that travel is neither too expensive nor time consuming.
7.) The expert’s fees should be reasonable and consistent with those charged by comparable professionals. Fees that are too high or too low are danger signals that may indicate a hired gun or an unreliable witness.
How do you find this ideal expert?
There are four ways. Any one of them can produce a good or bad expert, who will win or lose your case. The one that appears the least expensive and easiest may turn out to be the most expensive and risky. Here is how to avoid pitfalls that await the unwary attorney who sets out to find a credible expert.
I. The Local Amateur
1.) He or she is the most dangerous and uncertain. The so-called conspiracy of silence is really a conspiracy of intimidation. A doctor easily can be made to see that he or she is risking a career by testifying against a colleague. Local experts are notorious for their tendency to recant their testimony or bow out just before trial and throw your case into the legal equivalent of cardiac arrest.
2.) Doctors, who value their professional connections, will not testify against local colleagues. One who does probably does not have the standing or repute to be an effective witness.
3.) Unless you have an unusually large circle of friends in the medical or dental profession, it is unlikely you know a doctor with the necessary board certifications or credentials, who will also testify for you, and your expert may not be qualified to testify.
4.) The local doctor, who offers to help you, may really be helping the defendant by feeding you false information and lulling you into a sense of false security until it is too late.
5.) If he or she is a relative or close friend of anyone in your law firm, the expert may be disqualified as having an interest in the case.
II. The Medical or Dental Authority
Some authors and lecturers recommend seeking a doctor who has published works which agree with the allegations of your case. This approach is expensive and rarely successful.
1.) The old-school-tie spirit is much stronger in medicine and dentistry than in law. Most doctors have a deep-seated aversion to plaintiffs’ attorneys and will not even talk to you, much less help you sue another doctor. The more eminent the doctor, the more this holds true.
2.) Appeals to eminent doctors to testify “in the public interest” or “to help clean up the medical profession” are simply naïve and doomed to failure. Doctors know perfectly well that your interest is financial and that medical and dental disciplinary committees are the proper forum for policing their colleagues.
3.) The time and expense involved in traveling around the country, seeking interviews with eminent doctors, is usually prohibitive.
III. The Solo Expert
This is the professional witness, who advertises his or her services directly in the legal media. He or she may be a superb expert or a disaster.
1.) Opposing counsel, and malpractice insurance carriers, also read the ads in legal media, and if a doctor has ever advertised his or her services, he or she is open to collateral attack as a professional witness.
2.) The professional witness may claim fictitious credentials, conceal adverse data, or have testified as an expert outside his or her specialty, all of which destroy the expert’s credibility. You may be unpleasantly surprised at trial.
3.) He or she has no backup. If the solo expert drops out or is disqualified, your money is lost, and you are back to square one, possibly at a critical moment in your case.
4.) Solo experts tend to be very expensive, charging up to $2,500.00 or more to review a file and up to $10,000.00 or more per day for courtroom testimony.
IV. The Medical Legal Service
The basic function of a medical legal service is to provide accurate case evaluations and qualifiable medical and dental expert witnesses, who will testify for plaintiffs and defendants.
1.) A good service will utilize reputable, qualified physicians and dentists, offer ongoing back-up and ancillary services, and charge reasonable fees that are clearly spelled out.
2.) Their preliminary case evaluations should be performed by a specialist qualified in the specialty involved. Preliminary case evaluations by qualified specialists not only point your case in the right direction from the beginning but protect you against countersuit for legal malpractice.
3.) The service should be able to guarantee you experts from the different specialties your case involves and back-up experts, if your expert must withdraw from the case.
4.) A medical legal service should be able to provide you with an expert in your geographic area but far enough away to be immune to peer pressure offshore merchant account by the local medical or dental establishment.