About Medical Negligence
Medical negligence, or medical malpractice, is often misunderstood. It is a very difficult area of law, in that insurance companies pay large amounts to hire attorneys and expert witnesses to defend doctors, hospitals, and other health care providers. Doctors often have the right to refuse to settle, which means that the insurance companies must spend large amounts on defense.
In addition, juries are historically sympathetic with doctors and health care providers. Therefore, attorneys who represent injured patients must carefully evaluate cases, and we can only take those cases where the negligence is clear and relatively easy for a jury to understand. Even when cases are carefully selected, medical malpractice trials are lost approximately 70% of the time. In automobile accident cases the opposite is true, with auto accident trials won by the injured person approximately 70% of the time. Because we try to select cases carefully and to prepare them well, over 90% settle and do not need to be taken to trial.
(1) Duty, (2) Breach, (3) Causation, and (4) Damage.
To have a proper legal case, these four requirements must be met. First, in relation to a health care provider, a duty (1) must be identified. Second, there must be a breach (2) or failure to perform this duty. A health care provider has a duty to exercise the degree of skill, care, and learning expected of a reasonably prudent health care provider in similar circumstances. Failure to perform in a prudent fashion is a breach of this duty and is negligence. Then, the breach or violation of the standard of care must be the cause (3) of damage (4). Damage to an individual can come in many forms. Some of these forms of damage include: physical injury; loss of income, both past and future; unnecessary medical or surgical expenses, both past and future; loss of ability to work; physical therapy costs; hospital or nursing home care; private-duty care; loss of companionship of one's husband, wife, children, or parents; and pain and suffering.
Our Procedure .
After you contact us we will review the initial information which you provide. With full details and complete information we can give you the best consideration. Your information will always be handled in a confidential manner. Generally all three of us will review this initial information, and your answers are very helpful in giving us the best possible understanding of your situation.
Further, if we do decide to investigate your case, we will likely want to meet with you. As we proceed, we will then also want to review medical records. We will obtain these from your health care providers if you do not already have your records.
If we decide that it appears there was medical negligence, we will then want to have the appropriate medical specialist review your file. This review by an expert assists us in making a final decision as to whether we should take your case. It is also necessary to have the proper medical specialists, willing to be expert witnesses, before we file a case.
Once your case is accepted, and once you decide to accept us to represent you, we then enter into an Agreement for Legal Services. Nearly all cases are taken on a contingency basis, which means that we do not earn a professional fee unless we are successful in resolving your case. This system is advantageous to injured patients since often injured individuals find themselves without sufficient money to adequately live, let alone pay for an attorney. Since we get paid only if we are able to obtain a result for you, we must be selective in the cases we take. As previously mentioned, we can only afford to spend our time on cases where we feel the negligence is clear and where we feel have a reasonably good chance of being successful.
Personal injury lawyers who take automobile accidents and similar cases often charge one-third, or 33- 1/3%, of whatever amount is recovered. In medical malpractice, because of the large amount of time and expertise required, and because of the large expenses which attorneys must often advance out of their own reserves, you will find that the fees are usually 40% or higher. We generally charge 40% or 45%, with an additional 5% if an appeal is required. Again, these fees apply only if we are successful, and we are not always successful. As mentioned above, when we have to go to trial we lose about 70% of the time. In this situation, our firm has to absorb the loss of all the time and overhead costs related to the case.
Fortunately, we only have to go to trial occasionally. However, we can never predict when a doctor, a hospital, or an insurance company will refuse to settle. Therefore, all cases must be prepared as if we will be going to trial. In fact, preparing each case in this fashion gives you the best chance of getting a satisfactory settlement.
The process of preparing a case for trial is very detail-oriented, time-consuming, and tedious. We try to involve you only as much as is necessary so that you can live your life without this additional burden. Of course you are welcome to be involved more than the required amount, but many people find it a relief to turn over the daily task of case strategy and planning to us. We will help you in the legal process when you need it, and otherwise you do not need to feel like your daily involvement is necessary.
