If you suspect that you or a loved one may have been affected by a medical error, you may contact a lawyer. This first contact may take the form of a phone call or perhaps sending an online message. After that an in-person meeting will likely take place where more information is shared and the legal professional attempts to determine if you have an actionable claim.
Pursuing a medical malpractice claim is an expensive proposition. The time and cost of preparing court documents, conducting depositions, hiring expert witnesses, and the many other tasks are significant. For that reason, not just any possible case can be advanced. Virtually all of these matters are taken by attorneys on a contingency fee basis. This means that the attorney/law firm fronts all of those costs, only collecting if they are successful in recovering a settlement or award for the plaintiff. If they are not successful, then those costs are lost. For this reason, attorneys are careful when meeting with potential clients, understanding their situation, and considering whether to pursue the matter.
But what analysis goes into determining whether a claim is likely to succeed and worth pursuing? It is a complex answer that involves different factors.
One of our medical malpractice attorneys, Steve Levin, recently shared his perspective on this point in the August newsletter, Physician Risk Management. He pointed out that, at an initial level, the two most important questions are determining whether, in any given case, a physician acted as a reasonable professional and, if not, whether that failure caused serious injury. These two questions constitute the “Breach,” “Cause,” and “Injury” elements of basic negligence–the foundational issues in virtually all manner of liability lawsuit.
It is important to note that answering yes to the first question (below reasonable care) does not automatically mean that the answer to the second question will also be yes. On many cases, a patient may receive poor care and suffer injury, but the poor care did not actually cause the injury–something else did. In those cases, there is likely no basis for a medical malpractice lawsuit.
Understanding this connection is sometimes difficult to parse out, particularly early on in the case. Levin explained in the newsletter how in the past the firm has “take[n] the case because we are horrified by the conduct and do not pay enough attention to whether the conduct really caused significant harm.”
So what actual signs show an actionable case?
Attorney Levin explained how the patient’s medical chart is usually one of the first key indicators. There are often wide differences between charts. At times the chart includes well thought out analysis and clear indication that the professional carefully advised patient of options. At other times a medical chart may be sparse, with gaps, and questionable content. A medical malpractice lawsuit is much more likely in the latter case than the former.
Of course, it is important not to simply decide on your own that a case is or is not worth pursuing. There are many other factors at play, and only an experienced attorney can provide personalized advice on the best path forward.
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