Talking to a malpractice lawyer

November 20, 2007 11:49 AM

Meeting a lawyer to discuss a possible malpractice lawsuit- what questions should I ask?

I'm meeting a lawyer to determine if a malpractice lawsuit is worth perusing. As the patient and possible client of the lawyers, are there any common sense, general questions I should ask to protect myself?

Specifically I'm worried about time line considerations (if I go to another doctor and loose the case- who pays?), what to get in writing (everything?), or anything else from anyone who has already gone through a similar experience.

posted by rryan to law & government (7 comments total)

What state?

What are the damages?

In CA, medical malpractice claims are very hard to pursue due to the fact that MICRA limits recovery to $250,000. You may get future medicals and future lost earnings, but your pain and suffering is capped at $250k, period.

A doctor may be willing to treat you on a medical lien basis, but if there are very little damages, they won't bother.

Also, are you an adult? Much of the equation changes for minors in medical malpractice law.

Contingency fees will run from 20-50%, and costs alone will probably be around $20k including depositions, filing fees, motion fees and expert reports. On that basis and if you have no future lost earnings or future medicals, an attorney may not take your case.

Post more questions and I'll answer them. I'm a plaintiff's attorney in CA and I've taken a good number of these cases to conclusion.

PS This is a quick-advice situation and any information contained on this page should not be deemed to create an attorney-client relationship. Consult your own legal professional.
posted by Mr_Crazyhorse at 12:04 PM on November 20, 2007

You might consider typing up a report for the lawyer which you can go over with them when you meet, and a list of questions you want them to answer. It might focus things a bit more than you just telling your story.
posted by grouse at 12:09 PM on November 20, 2007

Usually the first consultation is free; it's your 30 minute shot to convince the lawyer you have a case, to get info about your options, and a chance for the lawyer to evaluate how much this might be worth to him or her.

Crazyhorse has some excellent advice here, by the way.

Make sure you have all your facts straight so you can go in and tell the lawyer exactly what happened and why. The lawyer will want to know a bunch of nitpicky details, so make sure you have these. Also, realize that injuries and body parts have a certain finite value, so don't be offended if you go in wanting $100k for the tooth that wasn't pulled right and be surprised when the lawyer tells you it's worth $6 grand. (This is a make believe example.)

Here's one more thing: Contingency fees (in Oregon at least) are often between 25 percent and 40 percent. If you think you have a strong case, or a case that will be easy to prove with little legwork by the attorney, dont' be afraid to try to haggle the contingency percentage down. It does happen. What you don't want to do is hire the lawyer then get pissed off afterward and come storming in wondering why the lawyer took $50k of your $100k settlement after doing 5 hours of work. Oh, and remember: Fees are NOT a part of the contingency agreement, so if it goes to trial realize you're gonna be out $5 to $20 grand in addition to the contigency fee. And you theoretically have to pay those trial fees, witness fees etc even if you lose.

I am not a lawyer yet and I despise personal injury law ... contact a professional like Mr. Crazyhorse for better answers.
posted by Happydaz at 1:14 PM on November 20, 2007

If I suspected I was injured by a doctor's malpractice, and was going to see a lawyer about possibly representing me, these would be the things I would ask:

* Prior experience in similar cases (i.e., is the lawyer a med-mal specialist?)

* How will the lawyer get paid? If it's a contingency, what percentage does the lawyer get?

* How will expenses be paid? Would I be responsible for out of pocket expenses (filing fees, travel expenses, expert witness fees, deposition transcript fees, etc.) These things can run into the tens of thousands of dollars over the lifetime of the case, and many "contingency fee" lawyers expect you to pick up those costs even if you lose.

* What are the possible strenghts and weaknesses of the case? What are my chances of winning in the end? Most lawyers will be reluctant to give you any kind of helpful answer to that question, but it's an important one. Embarking on litigation means signing up for a long, emotionally draining process. Knowing whether it's likely to be worth it in the end would be very important to me. If the lawyer is an experienced med mal attorney, he or she should have a pretty good idea of the likelihood of success, or at least tell you if you've got any shot at all.

That's all I can think of off the top of my head.

PS: Your last paragraph is very confusing. What do you mean by "another doctor"?
posted by pardonyou? at 1:17 PM on November 20, 2007

if any lawyer wants you to be responsible for the case costs, run far, far away.

quick note about future damages, they are going to get "periodicized" and essentially reduced to present cash value.

finally if you don't have substantial, permanent or debilitating injuries, you're not going to get far. in CA, for example, any judgment against a doctor for malpractice for $50k [or about] is reported to the state medical board. resultantly, the doctor is going to fight you, and then their insurance counsel is going to jump in the fray... and they're nasty buggers.

justice delayed is justice denied, and that's exactly what these people are going to do... try and outlast/outspend you and then grind you down for a few dollars at the end.

please be more specific about your damages.
posted by Mr_Crazyhorse at 4:06 PM on November 20, 2007

Thanks for all the suggestions. Here is some more info:

The operation was a double knee replacement. Once knee is angled to one side. A second opinion from another doctor concluded that the knee is 'bent' 2 degrees outside of the 'norm'.

The state is IL.

My last paragraph implies that when corrective surgery is done, if a doctor is chosen outside my HMO to correct the mistake, it has been suggested that any settlement will pay for the fees accrued from this corrective surgery.

Correcting the mistake (medically) is obviously important. If finding a doctor and having corrective surgery takes 6-7 months, I'm assuming the legal process could take longer. If so, and the surgery is done outside of my insurance, am I responsible for the surgical bills?

Thanks all. I'm printing these out to use.
posted by rryan at 4:20 PM on November 20, 2007

Doctors aren't God... although they act like they are [sorry ;p]. They make mistakes, they're not perfect. And that's exactly what their lawyer is going to tell the jury... and he's RIGHT... on what the law says anyways.

The operative, excuse the pun, question is going to be whether or not the treatment was "outside the standard of care". That can be a complex question, especially when the issue is how a particular surgery "healed up".

The only way you are going to be able to prove that the surgery was indeed malpractice is to hire your own medical expert at $300-$600/hr to write you an extensive report about your surgery and your future medical prospects.

Defense counsel is going to allege that you didn't heal right, or that alternatively, you have abnormal physiology... and that basically it's all your fault. The usual.

A doctor can do the surgery "on lien", meaning he will only get paid if there is enough after the case is settled to cover the costs of the surgery after costs and attorney fees. Given the high cost of this surgery and the absence of any wanton act of malpractice, you're going to have little luck IMO. Your best bet is going to be with your HMO, but they will have a right to recover.

Non-economic damages are capped at $500k in Illinois as far as I can tell. You're going to have to start thinking in terms of future medicals and future lost earnings... but I'm not sure how much a jury is going to give you for having one knee that is "2 degrees out of the norm". Not much.

Also, I don't know why you had the knees replaced, but if it was because of abuse, the defense attorneys are again going to blame you and say you have 1-100% of the fault because if you hadn't ruined your knees... the surgery never would have happened.

Likely they're going to say you just didn't heal right.

here's some reading for you:

http://www.mcandl.com/illinois.html

Good luck.

[PS This is a quick-advice situation and any information contained on this page should not be deemed to create an attorney-client relationship. Consult your own legal professional. This is a general discussion of medical malpractice actions pursuant to CA law, and may be partially or wholly inapplicable to your particular situation.]
posted by Mr_Crazyhorse at 6:53 PM on November 20, 2007