Even the most conservative estimates indicate that more than 7,000 previously healthy people die each year from hospital error. Nevertheless, medical malpractice defendants win nine out of ten trials, possibly thanks to political lobbies that invest vast sums to convince us all that doctors and hospitals can do no harm and that medical malpractice litigation is lawyer-driven and frivolous.
Of course, medical malpractice lawyers know better. In most cases, your client has faced a tragic accident at the hands of a careless medical professional, and they deserve justice. Being able to provide your client with even a small fraction of restitution for what they have endured makes winning medical malpractice cases all the more important.
Here are six tips you should consider when navigating these complex, expensive, and notoriously hard to win cases.
Intake is your chance to decide whether to work with a potential medical malpractice client and to begin developing your case themes. You may hate turning prospective clients away, but each wrong case taken costs you time, resources, and money. Listen if your gut tells you this is not the case for you.
Consider these factors in making initial decisions about prospective clients:
How well can this person explain what happened? You can’t expect this person to know or recall each detail of the events that led to their injury. However, they should be able to say why they believe something was done wrong and how the medical malpractice harmed them.
Do they listen to and meaningfully answer your questions? Are they comfortable asking you questions? You will be working closely with your client, potentially for months, and poor communication or a lack of reliable information do not make for a successful collaboration.
What are their expectations? Is this person seeking justice or hoping for an outsized recovery?
Have they made efforts to overcome the difficulties caused by the medical malpractice? Are they forthcoming about whether they’ve met with other lawyers? These considerations affect how you view your client. Your sympathy and respect for this person—or lack of it—will influence how you work with them and may be apparent to a jury.
What are the compelling elements of their story? Watch for details only the client can provide about how the defendant breached their basic expectations for medical care. Listen to and honor their account. Allow the conflicts between their account and the defendants’ proffers to drive your investigation.
Calculate when the applicable statute of limitations may run and the effects of any caps on fees or awards. Ensure that the likely award is sufficient to justify the risks of litigation and warrant the significant time and costs you will spend preparing for a medical malpractice trial.
Trial preparation may involve sifting through piles of documents or terabytes of e-discovery, identifying and deposing (sometimes hostile) fact and subject matter expert witnesses, and staffing associate counsel.
Some of your most significant time and money investments in preparing a medical malpractice case are spent developing qualified medical expert testimony. Finding the right expert to help tell your client’s story in a compelling, comprehensible way may take months, as doctors can be reluctant to criticize their peers, particularly in narrow fields of expertise. More months may pass while your chosen experts complete their review and prepare reports and testimony on your client’s medical records.
Multiple defendants may mean you need multiple experts. Negligence allegations involving hospital staff, systems, equipment, or technology may need supporting testimony from expert nurses, technologists, or hospital system managers.
As you build up convincing evidence, your calculations may change, but check in early with the medical provider’s malpractice insurance carrier to discuss settlement possibilities. Negotiating a favorable settlement is a huge win.
Because fees for experts, court reporters, court filings, and copies of medical records can easily rise to tens of thousands of dollars, you’ll need a plan to cover out-of-pocket expenditures.
Maybe you have that kind of cash on hand but are hoping to invest it into growing your firm and don’t want to tie it up in litigation that may take years to resolve. Maybe you simply don’t have the money liquid, are worried about losing it if the case goes sideways, or would prefer to not make interest-free loans to clients from your after-tax dollars.
Level Case Financing helps you avoid coming out of pocket for skyrocketing medical malpractice case expenses. This case-specific line of credit offers quick and seamless access to capital as needed, at low rates, through a user-friendly portal. Don’t tie up your money in cases – instead, use LevelEsq’s money and keep your cash for nurturing the business of your law firm and increasing profitability.
Armed with a sword and shield from LevelEsq, you can put a strong financial plan in place for your medical malpractice case.
While most defendants will admit that medical providers owe patients a duty of care, they won’t admit to breaching that duty by departing from an acceptable care standard. The standard calls for reasonableness, not perfection, so making a less than ideal choice or failing to achieve patient expectations may not be medical malpractice.
Doctors and hospitals will deny any error on their part. Defendants know their story well and will invest every resource to maintain it.
Medical decision making, they’ll say, is complex, difficult, and often inherently risky. Emphasizing that there are multiple acceptable approaches to a medical problem, they will pronounce that bad outcomes sometimes cannot be avoided. Despite these difficulties, they’ll declare they tried their best.
Their self-serving notes and records and their arsenal of high-priced experts will support the reasonableness of their conduct.
Your narrative, supported by medical expert evidence, is fundamental to establishing breach. Build on the themes you began crafting at intake, distilling into them the information gained during discovery and trial, to shift the focus from abstract medical issues—on which jurors may defer to medical professionals—to the provider’s relatable moral choices.
In arrogance, a provider may have disregarded reasonable limitations, misread test results, relied on intuition rather than objective findings, or used unsafe or untested practices without proper warning.
Perhaps feeling rushed, a doctor jumped to conclusions, lumping the patient into a diagnosis or treatment that didn’t fit rather than testing or examining the distinguishing detail that would have led to the correct intervention. Possibly an indifferent or evasive provider typed notes rather than listen to the patient, became unreachable, or went on holiday without communicating important results. Systemic problems, like commitments to doing more with less resources or staff, spreading care among varied (sometimes, less qualified) providers, or cramming patients into profitable units, may also tilt medical providers toward negligence.
Boiling a case down to human issues and emphasizing basic principles reduces juror confusion and empowers them to resolve difficult questions about developing and enforcing patient safety standards. Make them see their mandate to approve systems that perpetuate negligence or demand beneficial changes via a plaintiff verdict. How you tell the story, weaving the facts into your themes at each turn, is key to winning your medical malpractice case.
Demonstrating substandard medical care is only part of the battle in your medical malpractice lawsuit. The most difficult hurdle awaits—proving that the negligence harmed the plaintiff, who will only be entitled to compensation for the injuries caused by the negligence. If a hangnail is mistaken for a tumor but resolves well anyway, what is the harm?
The defense will attempt to evade causation, arguing some or all the injuries would have occurred absent any error. Concurrent illnesses or other problems unrelated to the medical malpractice, they’ll say, explain the plaintiff’s problems.
Your medical expert evidence will help you explain how the substandard care you’ve shown caused the injuries at issue. To debunk the defense’s alternative explanations for the harms, you may need experts from different medical subspecialties than your standard of care expert.
From past care costs and loss of income that are relatively easy to show with documentation to more ambiguous damages like future costs or general damages for pain and suffering, you’ll need to prove every detail you can to maximize your client’s award.
To establish future costs, you may need a panoply of experts to describe the plaintiff’s most likely path forward. Care costs will include the spectrum of medications, assistive devices, and other therapies that will allow them to manage symptoms and recover the quality of life they had before the medical malpractice. You’ll also want to show how the medical malpractice reduced your client’s earning capacity and ability to execute routine self-care and property maintenance tasks that they must now pay others to do.
In addition to medical experts, consider rehabilitation specialists to report on assistive devices, treatments, and home modification for accessibility and actuaries, whose mathematical predictive skills can put a dollar amount on uncertain future costs, considering interest rates, the job market, and your clients’ skills.
Medical malpractice cases are challenging to win, and it certainly takes a great lawyer to take on these types of cases. Fortunately, LevelEsq offers trials lawyers financing for cases costs so they can protect their investments and grow their law firms. Using our funding solutions, you can inject cash flow into your cases and afford to take down the medical malpractice defendant that doesn’t want to pay for the damages they’ve inflicted on your client.
If you are ready to protect your law firm, get organized, and win the settlements your clients deserve with the help of our finance solutions, contact LevelEsq today! Tap here to schedule a call to learn how we can help you win big and win fast.