Patients assume that, if they are harmed by a medical error, two things will occur. First, their medical professionals will rally around them to prevent the consequences of the error, pulling out all the stops to leave the patient good-as-new. Second, if there are problems that can’t be fixed, attorneys will throw themselves at the patient to help them sue the doctor who made a mistake.
Neither is a realistic picture. Injured patients often find themselves abandoned by the doctors whose error caused the problem and unable to find a new care team. This is because the other doctors want to avoid a situation that might require them to criticize a colleague. Moreover, as explained below, finding a lawyer for a medical claim can be nearly impossible.
The short answer is that the system – which includes the medical system and the legal system – is not set up to ensure compensation for injuries caused by medical errors and defective medical products. Often, only the most horrifically, egregiously, injured patients will draw interest from attorneys for patients. And it’s only a subset of those cases that will actually end in a worthwhile settlement or verdict for an injured patient.
Walk a mile in your lawyer’s shoes.
To understand these issues, you need to put yourself for a moment in the shoes of the average patient’s lawyer. Here are some things you should know about yourself.
Running your office is expensive. You need to have an office for client meetings and depositions. You want the office to inspire confidence, so it’s gotta be nice. You need staff for that office, and that staff needs health insurance. You need expensive equipment and supplies. You have to pay for legal books and research services. You need malpractice insurance.
You work on contingency. You don’t have a steady stream of income. This is because your clients can’t afford to pay the hourly rate for your services that would keep your doors open. In contrast, the lawyers for doctors and manufacturers are almost always paid an hourly rate by an insurance company. But you get paid only when your clients do, so you have an agreement with them to take a percentage of any recovery you help them get. Each case is expensive. Unlike car crash cases, divorces, and small criminal matters, cases against doctors and medical product manufacturers require lots of professional experts. These experts do not work on contingency, meaning the attorney (you) must pay their expenses as the case progresses, well before any attorney fee is earned.
It’s hard to overstate how significant this issue is. Costs in a complex medical case can run in the hundreds of thousands. How? Take, for example, a case against a medical device company that made a product that malfunctioned during a surgery, causing lifelong internal problems. To win such a case, you’ll need to figure out why the product malfunctioned. Was it a design problem or a manufacturing problem? Both? Should the warnings have been different? You’ll have to pay at least two different engineers to look at that issue, which will require them to review tens of thousands of pages of documents. You pay for each hour in which they do so. Once you have that figured out, you’ll need to figure out if the product was misused by the doctor. You’ll have to pay a surgeon to figure that out. Then you’ll need to figure out if the subsequent treatment, after the surgery, was appropriate. That means you’ll need to pay those subsequent doctors to talk them; this could be as many as 20 different specialists, depending on the injury. Then, for at least some of those specialties, you’ll need to pay to have an independent review of their work. This is because the device company will blame the care team, or the patient, for the problems that occurred.
We’re not through with the experts yet. You’ll need an expert to put together the all of the medical expenses that are attributable to the original injury from the surgery. That expert (or perhaps another) will need to prove that those costs were reasonable, so that you can recover them for the client. You have to pay a psychiatrist or psychologist or neuropsychologist to evaluate your client’s mental health damages. Your client can’t work anymore, so you need to hire a vocational rehab specialist to show why lost wages are appropriate. You need to order tens of thousands of pages of medical records to make sure your experts are properly informed. And you need to hire an economist to figure out much money needs to be paid now to make sure the eventual settlement or verdict properly accounts for interest and inflation.
Then, when you actually file the case in court, you have to keep these experts up to speed as new information comes in. The manufacturer will take depositions of each expert. This means you need to work with the expert before each deposition (cringing at the hourly rate), to make sure they don’t say something that can be taken out of context at the trial. The manufacturer will also hire its own experts. You need to depose those people, probably each one. To depose them, you have to pay their hourly rate. And often, the manufacturer will disclose multiple experts on a given topic, forcing you to depose more than one expert. Some of these experts charge more than $1,000 per hour.
These depositions carry their own costs. You have to pay both hourly and flat fees for for a neutral videographer and a neutral court reporter. For many of the experts, you’ll need to travel across the country for the deposition. You’ll have to pay for the airplane, the hotel, the rental car, the expensive food. Even for local depositions, you’ll have to pay for smaller things like parking. You have to pay for the transcripts and videos themselves. The little things add up.
Then, as the case progresses, the manufacturer will try several times to attack your experts’ testimony in an effort to have the case limited or thrown out. These attacks will each require you to spend time with your experts to rebut or stave off the attacks. So the bill keeps growing.
You will be required by court order to have a “mediation” of the claim. This most likely means you and the manufacturer will split cost, in the thousands, of a former judge or high profile attorney in an attempt to negotiate the claim.
And then comes the trial. You need video equipment for the courtroom. You and your staff need hotel rooms and transportation to court. You need food for your entire team. You need to make sure each of the witnesses will be in court on time. You have to pay fees to have subpoenas served. You have to pay for your experts to fly across the country for the trial, and you need to put them up in a hotel nice enough to keep them happy.
Opportunity Costs. When deciding whether to take a case, you also have to take into account the opportunity costs. If you commit to take this case, how much of your time will it consume? Will it mean you can’t take on a better case that you don’t know about right now? The aphorism passed down by plaintiffs’ lawyers is that a firm makes 90% of its income from 10% of its cases (but does 90% of its work on cases bringing in the 10%). The trick is trying to figure out whether the case you’re thinking about taking on will be the one that puts you over the hump for the year, or whether it will suck your time and money away only to be resolved for a relatively small amount. This is what’s lingering in the back of your mind as you decide whether to take on each new potential injured patient.
Time to Payoff. Not only are your investments uncomfortably large, but it can take a really long time for them to pay off when they are successful. Even after filing, cases generally take 2-4 years to bring to trial. And if trial is successful, the defense appeals. That can add another 3-4 years. And here’s the kicker: in federal court, the interest on a successful jury verdict as of the date of this writing would earn interest at only 1.8%. That means defendants have every incentive to drag the appeals process out as long as possible by requesting postponements and bringing appeals with shoddy merits.
The cases are hard to win. Jurors want to feel like they live in a safe world, like the thing that happened to your client could never happen to them. Jurors see doctors as helpers, doing their best in a difficult situation. Jurors don’t want to stand in the way of medical progress, and worry what affect a verdict against a medical product manufacturer might have. Jurors have been trained, through decades of propaganda, that people who bring lawsuits are just seeking a handout. They are told that plaintiffs, even patients injured by clear medical error, are not to be trusted.
All of these innate juror feelings add to the degree of difficulty of a medical lawsuit. A great study in 2009 on juror treatment of malpractice claims crystallizes the problem. It found that doctors win about three of every four cases that go to trial. They even win the cases they should lose. To show this, the researchers had independent doctors review 208 closed insurance files for cases that were eventually tried. Based on physician reviews of those files, patients should have won 67% of the cases. But the patients actually won only 21%. When you’re winning less than a third of the cases you should win, there’s a bias you need to recognize.
Laws that take away remedies. As hard as it is to convince a jury that you should win, you can still lose even after a jury says you win. For example, imagine you have a former triathlete as a client, but that client ends up having both legs amputated because of a clear medical error. A jury decides the lost legs should be valued at $10 million. (Your client was, after all, using them every day.) If you are in California, that $10 million is reduced to $250,000, likely not even enough to pay all of your experts. Many other states have similar (awful) laws.
Medical product manufacturers also have it good. If their product receives a certain kind of approval from FDA, that fact simply cuts off most kinds of lawsuits against them. They have special laws protecting them in discovery. (Doctors do too.) And some states even cap damages in product liability lawsuits. Likewise, in some states, there are no punitive damages available, even when it is shown that the manufacturer has recklessly ignored a danger to patient safety. If you’re going to bring a medical lawsuit, you need to recognize that you’re swimming upstream.
The takeaway. What all this is meant to show is that winning cases on behalf of injured patients is difficult, expensive, risky, and slow. Because of that, lawyers for patients have to be extraordinarily careful about which cases they commit to go forward on. This means injured patients will often – in their time of greatest need – hear a “no” from several attorneys.
How can injured patients increase their chance of finding a lawyer?
Patients come to lawyers when at their worst. They have been dealing with chronic injuries, stonewalling from doctors, lost work, and insurance problems. They can’t do the things they used to enjoy. This all puts stress on marriages and families as well. Under these difficult circumstances, it is easy for patients to be, well, impatient.
Being rejected by attorney after attorney under these circumstances only adds to this, worsening the already significant trauma from the medical error. The patient feels abandoned and hopeless when no attorney will take the case. So what can a patient do to help avoid rejection?
Know what the attorney is looking for.
The attorney is looking at four primary things when evaluating a potential new case: an obvious mistake or malfunction; a serious, permanent injury; clear causation; and collectability.
An obvious mistake will take fewer experts to prove and lower the chances of losing. How do you know if you have an obvious mistake? There are lots of good indicators. Did the surgeon apologize or admit error? (This matters even in states where the apology might not be admissible, as it gives a clue to the lawyer that this is a real error and not just a bad outcome.) Do the medical records document the mistake? Do they say a product malfunctioned? Have other doctors told you it was a mistake or a bad product? If it’s a product, has it since been recalled? You want to find all of the information you can to show the lawyer: Don’t worry, we’re gonna win.
When looking at the injury, lawyers are looking for a few different things. Is the injury something that causes chronic, permanent problems, or was it a discrete event of unnecessary (but transient) pain? Does the injury affect something you have shown you love to do? Does it impact your ability to raise your children? The lawyer will also be curious about the medical bills. Will this require a lifetime of treatment with different specialists? Have there already been multiple surgeries to fix the problem? Are your other doctors willing to speak to the attorney?
As to causation, the attorney will want to know how you can show that the mistake/malfunction caused the injury, as opposed to some other cause. How do we know that missing the cancer diagnosis actually led to death? How do we know the bowel perforation was caused by the malfunctioning instrument, and not some natural cause? How do we know the loss of the ability to do the things you love actually happened because of the surgery, and not some other, unrelated medical problem? Defense attorneys are ruthless in blaming things other than the doctor and/or product. The attorney you speak to needs to have a reason to think they can rebut those arguments.
The collectability issue in medical cases is often less significant: doctors, hospitals, and product companies are often quite wealthy. But collectability can still be an issue. Was the doctor’s conduct intentional, such that insurance might not cover it? Was the doctor on staff at the hospital, or will you be limited to only the doctor’s insurance policy. Is the company that made the product now defunct? Bankrupt? Has it exhausted its insurance on other payouts to other injured people. Most attorneys will not expect you to know these things, but they will be on the attorney’s mind.
Collect your records. Patients can now get their own medical records fairly cheaply under the recent “HITECH” Act. You can jumpstart the process of investigating your case by going to the hospital/clinic and telling them you’d like to do a “HITECH request” for all of your records. You can’t have too many records. Some providers will resist this and try to charge too much. But the cost should be very cheap: if the provider seeks to charge you more than $25, it’s probably too much. You don’t need to fight with the provider on this: if they want to charge too much, you can wait and have the attorney get the records. But if the clinic/hospital is being reasonable, you will be able to have all of your records before speaking to the attorney. That’s a bonus. Bring them on a thumb drive or figure out how to send them electronically. Then, select out the most important documents: the operative note, the discharge note, and any emergency room admit records. If you believe the mistake was made during a surgery, get the anesthesia records as well. If one of your records shows causation, pull it out and highlight it.
Document your follow-up. Keep a calendar with all of the doctors, physical therapy, and counseling appointments. Anything related to the injury. Document every visit. Document how long it took. Keep track of the work you missed. Keep track of the medications you take, and what you spend on those. If a doctor says something that you think is important, write it down in your calendar. Medical records often have key omissions, so documenting things yourself can strengthen your claim.
Stay off of social media. Defense attorneys are looking for things to make you look bad, and Facebook/Instagram/Twitter are usually the easiest places find those things. They will look for pictures that they will pull out of context to argue you are not really hurt. They will look for statements of blame. They will look for sources of stress (work conflicts, family arguments) that have nothing to do with the case. And they will look for ways to learn about your personality, so they can manipulate you during your testimony. You don’t need to give them that ammo. Just stay off of social media during your lawsuit.
Collect photos. Put together photos that show what you were like before the incident. Things that illustrate what you will eventually want to tell the jury. Bring those photos with you to any meeting with a potential attorney. Electronic copies are better.
Be patient, but not too patient. The attorneys you speak to have a lot going on. They have cases they are already responsible for. They have other cases they are “screening.” They have families and office politics to deal with like everyone else. So don’t be alarmed if a week goes by without communication. With that said, however, do follow up. Cases have statutes of limitations, and you need to protect yourself. So at the initial meeting, be sure to ask the attorney’s opinion on the statute of limitations. Then, be assertive enough to check in every two weeks, to see if there is more information you can provide the attorney. When you do so, be careful of your tone. You don’t want to seem like a complainer. No one wants to sign up a difficult client. So simply use a professional tone, ask for a status update, and limit your check-ins to every two weeks.
Don’t talk to just one attorney. There is no law against talking to more than one attorney at a time. Each attorney will have a different risk tolerance. Talking to multiple attorneys thus gives you multiple chances to find the right fit.
With that said, don’t hide the ball. Be honest with each attorney about the fact that you’re still shopping for a lawyer. Ironically, this will often actually make your case more attractive, and increase the urgency the attorney feels about your case.
Don’t give up because one says no. Rejection can be crushing, but it only takes one “yes” to move a case forward. I have gotten seven-figure settlements for clients who had been rejected by multiple other attorneys. Every attorney will see angles in a case that other attorneys might miss. So be as persistent as you are patient.
How do I pick between lawyers?
Some injured patients are lucky enough that finding one attorney isn’t the problem; choosing an attorney is. So how do you choose between several accomplished attorneys? Below are the traits I would use if choosing a lawyer to represent someone I love.
Candor. I think this is the most important. When you talk to the lawyers, are they trying to give you a realistic idea of what years of litigation will be like, and whether it’s worth it? Are they telling you the good parts as well as the bad? Or are they making it seem like once you sign up the other side will simply throw a truckload of cash at you?
Case-Specific experience. If you’ve got a malpractice case, does this lawyer specialize in that kind of case? If it’s a device case, have they done such a case before? Or have they made their bones on other kinds of cases, and you’ll be their guinea pig in this case? Most people know at least one lawyer. Talk to that person: what does he or she say about how useful this lawyer’s experience is? You would not go to a cardiologist for a knee problem: so find a lawyer who focuses on your kind of case.
Do they go to trial? Defense attorneys love litigation, but many hate trials. A bad enough loss at trial can lose the client/insurance company for the defense attorney. For this reason, insurance companies and manufacturers will place a higher settlement value on cases where the patient’s attorney has a demonstrated track record of actually taking cases through to trial. So that’s the kind of lawyer you want to find. And don’t just believe the lawyer when he says he goes to trial. Ask for specifics. If you know a lawyer, ask that lawyer what this lawyer’s reputation is. What will the defense attorneys learn when they research your lawyer?
Resources. I wish this weren’t an issue, but resources matter. You want your attorney to feel comfortable spending what needs to be spent to work your case up. So ask the attorney what they would budget for costs for your case. What would they be willing to spend? Are they able to see the case all the way through trial, if necessary?
What doesn’t matter? When I’m evaluating a patient’s attorney, I care little about what law school s/he went to. There are outstanding attorneys from lower tier law schools. There are attorneys from Harvard and Yale whom I would never hire. Similarly, many lawyers will brag about various honors and awards on their websites. The vast majority of these honors are not worth the pixels devoted to them. In fact, some honors can be bought by the lawyer who gets them for a fee. Focus more on experience in similar cases, willingness to go to trial, prior verdicts, and candor. Do not fall for an attorney who is simply telling you what you want to hear.
What will litigation be like?
You’ve found your attorney, and you’re moving forward. What should you expect? There are three different things I try to emphasize when talking to clients about the litigation process.
1. Hurry up and wait. There will be long periods of inactivity. Those will be followed by short bursts where you have to produce a lot of information quickly. And then you’ll wait again. This will go in cycles. The first cycle will involve what’s called “written discovery.” This is where the defendants serve written questions that you must answer within 30 days. The questions also include document requests. Much of what is asked for will seem unreasonable and unrelated. That’s for your lawyer to worry about: your job is to get the answers and documents to the lawyer as soon as possible. Then, as the case goes on, you’ll be asked to supplement your answers several times. That’s part of the deal. The second cycle will involve your deposition. Your lawyer may want to spend several hours preparing you for the questioning. This will involve more questions, more documents, more pictures, etc. The final cycle is the trial itself. Not only will you need to prepare for your trial testimony, but you will be crucial in helping choose which witnesses testify and arranging for that testimony.
2. You have little privacy. Your claim will involve, in some way, an argument that your life is much worse than it used to be because of the medical error or malfunction. Unfortunately, that opens up areas of your life that you would rather keep private to “discovery” by the defense. The defense will ask about your sexual relationships in almost every case. They will ask about family fights. They will ask to see the notes your counselor takes. They will ask to see your emails between friends and family. They will ask to access your private social media accounts. The more sensitive the info, the more they’ll try to get at it. And, despite your attorney’s best efforts, they will probably get some information you wish you could keep private. This is a reality that needs to be accepted early on in the litigation.
3. Discovery goes both ways. The flip side is that we also get to do discovery. We get to find out about stressors in the doctor’s life. We get to see internal emails at the hospital about your case. We get to find out things from the doctor’s past that s/he wishes were private. We often get to see how much money everyone is making, so we can know about the financial incentives that led to your injury. And when suing a company, we get to go through their internal files to find out what they really knew, and what they really care about. This is miserable for them, which is simply another unfortunate reality of the system. They fear that embarrassing information will get to their competitors. They fear media interest. And above all, they fear anything that will move your case toward a public trial that will invite more litigation from others in the future. A good lawyer will keep you updated on these positive discoveries as the case goes forward. But even if they don’t, ask them what they’ve found. You could use a little good news during this drawn-out process. And it’s important to remember that your privacy isn’t the only privacy that’s being invaded by the process.
Is it worth it?
Every injured patient should ask, before going forward, whether it’s really worth it to sue. In answering that question, the patient should be ruthlessly practical. Ask yourself: what amount of money would make a truly significant difference in my everyday life? What is too small to justify a suit? Then ask your attorney(s) what chance s/he thinks there is of getting that much money after all is said and done. If the chance is low, you may not want to bring the case. The down sides, in terms of intrusion in your life and invaded privacy, may simply not be worth it.
With that said, most patients undervalue their cases. Many patients say they just want medical bills and lost wages paid back, when in reality those are often the least important parts of their case. Moreover, case value often depends on how bad the conduct of the defendant was. The worse the conduct, the less trouble a jury has with making the defendant pay for the full consequences of the behavior.
And for every client I’ve worked with, there were reasons beyond money to bring the case. When something goes horribly wrong, injured patients want to make sure it doesn’t happen to someone else. They want to know that changes are happening. Instead, they are confronted with a medical system more interested in defeating liability than preventing the next tragedy. In that situation, bringing litigation is often the only way to force a defendant to confront its dangerous behavior, to correct systems problems. That can feel good.
In other words, the decision whether to bring suit is an ultimately an intensely personal one. Only the client can make it. But becoming informed about what to truly expect by finding a lawyer whose candor creates trust is a great start.
And for those few patients who are able to bring a case, and who do win a life-changing amount to compensate their injury, there is nothing like it. Those patients, some of whom I’ve been lucky enough to work with, go from feeling like the world stepped on them to feeling like they have some power to make things better. They get help fix a flawed and dangerous system by making real change. They get to know that their bravery, their willingness to sacrifice their privacy and time, will prevent future tragedies. In short, they get to win for a change.