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 Medical Surgeries, Diagnosis and Related Issues Medical malpractice lawsuits are, by nature, very litigious. That is, they are lengthy, costly and fought in a manner of life and death. The reason is usually because the plaintiff or his/her representatives have suffered a serious harm, and the defendants (the physicians, hospital and others) are being told that they did not perform their jobs properly. Thus, you should know that any malpractice case is a serious investment of time and money on your part. You may argue that it should not be this way, because you have already been injured, but such discussion may be reserved for legislators who can change the system. Until they do, the following information may serve to help you form realistic impressions about malpractice cases. First and foremost, remember that you are suing doctors for breaching a standard of care in their profession. It should be more than obvious that this means that you must find a doctor or doctors who will agree with you, under oath, in a courtroom, that another of their "brethren" did not act properly in performing their duties. This can be an almost insurmountable hurdle. Many lawyers are specially equipped to deal with this area of the law, and if you have any claim of malpractice, you should always consult these lawyers first. Remember that the lawyer with the biggest television or radio ad is not always the most qualified attorney. You should use your legal plan for a referral to an attorney, and discuss the matter at length with them if you have such a case. When you consult with a lawyer, what is involved? The attorney will need all of the information and documents which you may have available and will need a list of those documents which you may not have, but which you know you signed or you know exist. One key point, as discussed below, is that the Statute of Limitations in such cases is often very limited. New state laws restricting rights of plaintiffs to sue for malpractice have provided that time is of the essence, or no matter how serious the injuries, the claim cannot be pursued. As such, do not wait until you have all of the documents to discuss this with a lawyer. Talk to the lawyer right away. Often the lawyer will know how to obtain documents that it may take you months to obtain. Sometimes the hospital or doctor is stonewalling, hoping the relevant statutory time periods will expire before you sue. DO NOT DELAY. Understanding the fees and costs in these matters is critical. From the moment your lawyer consults with you, he/she will not know if you have a case. They may believe your story sounds like a case of malpractice, but many things must be verified before the lawyer can be reasonably sure. There are now substantial penalties in some states for bringing lawsuits in this area where the lawyer has not performed an adequate and reasonable investigation of the facts. This means that, unlike other areas of law, a lawyer must investigate your facts as you have relayed them. This takes the time of the lawyer, and because certain documents must be procured, it takes some money for copying costs and related costs. A complete set of your medical records relating to this matter must also be ordered and reviewed. Hospitals and physicians typically charge a premium for preparing and copying these records. Also, to make a case of medical malpractice, a lawyer must present initial evidence, in most states, that a medical standard of care was breached. This means that a lawyer who is contemplating taking your case, must have a physician or expert review all of the medical records in your case. One cannot tell if a doctor has breached a standard of care until one reviews exactly what a doctor has done. The actions [or inaction] of the doctor will determine whether there is a breach of care. Remember that your injuries, suffering, or other obvious sounding results of treatment or surgery may not be definitive in establishing a breach of care. So who pays for all this? First, how do you pay the legal fees? Generally, attorneys who operate in this area will take such cases on a contingency fee. That is, they will not charge you any fees initially, but will take a portion of the recovery. In some states, these fees are fixed by statute and can range from 10% to 45% or more in some cases. This type of fee enables you to have your case reviewed and litigated when you might not have otherwise had the money to pay a lawyer. But what about the other costs, most importantly the cost of procuring a complete set of medical records, and of paying the expert or physician to review the records and certify that a case of medical malpractice may have been committed? More recently, because of cost constraints, it is not uncommon for lawyers to request money at the beginning of the case to cover the expected costs, in addition to the contingency fee, which will compensate an attorney for his/her time spent on your case. Thus, it is common today to expect to pay an attorney anywhere from $500 to $5,000 for costs. This is not to compensate the attorney for his/her time, but to cover the costs the attorney must spend on your behalf, before he/she even learns whether there is a case. You must be prepared to know that this money could be spent and a determination made that, despite your personal beliefs, a case for medical malpractice in your state with the facts and documents in your case, cannot be made. While this sounds brutally honest, it is true. Many people are coming to attorneys these days saying that an attorney should spend the money needed to determine if a case of malpractice has occurred. It is simply not fair to expect an attorney to bear the burden of spending their money to determine that your case can go forward. The best advice regarding the actual fees and costs you will be expected to pay is to simply talk to the attorney. Each case is different and this discussion is only intended to give you a brief summary of what to expect from your pursuit of these types of cases. Just make sure that whatever fee arrangement you and your attorney decide upon is committed to writing for the protection of both parties concerned. Be sure that when you talk to the attorney initially you tell him/her ALL the facts of your case, as this is the best way to avoid spending money on a case that cannot be proven. Withholding certain facts, however small, that may affect whether or not you actually have a medical malpractice case is the fastest way to waste money investigating a case that surely has no future. Often times people leave out little details so that an attorney will be more likely to take the case, but this is more likely to lead to disappointment, wasted time and money, and heartbreak. While it will generally be in your best interest to be HONEST with your attorney in all types of civil cases, as it helps him/her help you, this is especially true in these types of emotionally charged cases and cases that require extensive research before they are retained.
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