Working Up A Med-Mal Case

Clifford's Notes, Chicago Lawyer April 1, 2010

By Robert A. Clifford

For the third time, caps on damages in medical malpractice cases have been ruled unconstitutional by the Illinois Supreme Court.  Although this decision impacts victims of malpractice, it should not change how a plaintiff’s lawyer decides whether to take a case.  The principles of determining the merits of a medical malpractice action remain constant.

Let’s examine what a lawyer must consider before accepting a medical malpractice case.  Lawyers know that the analysis of records by doctors and medical specialists for an initial review of a medical malpractice case can cost hundreds to tens of thousands of dollars.

Going in, it is important that the negligence on the part of the medical professional is real.  Lawyers generally do not file “frivolous” lawsuits because doing so would put them out of business sooner rather than later.  Why?  Because truly “frivolous” cases cost much to litigate and end up with no recovery at all.

The days of small settlements in medical malpractice cases are over.  One can’t expend hundreds of thousands of dollars for depositions, experts and exhibits to develop a case for trial unless the potential recovery far exceeds these expenditures.

Those who suffer the misfortune of incurring countless medical bills as the result of the negligence of a medical practitioner may simply have to rely on their own insurance.  If they don’t have insurance, the taxpayers would have to help get them through.

Even if the initial review by medical practitioners confirms that a clear-cut deviation from the reasonable standard of care occurred, the damages aspect of the case has to be taken into account and must be permanent and substantial.  In other words, generally only catastrophic injuries will be considered.  Even if the patient was treated shabbily and has a lot of medical bills, if her or she recovers medically without permanent problems, legal recovery is unlikely. Prior medical history may also be a factor in whether the case is viable.

Of course, close attention must be paid to statutes of limitation. Is it a straightforward two-year statute of limitations, or does the case involve a minor or a mentally disabled adult?  Was there a continuing course of negligent treatment of fraudulent concealment that could toll the statute of limitations?

From the many medical malpractice cases I have handled over three decades, a pattern has developed in cases that we file today.  A helpless infant deserves the legal system’s attention.  Situations in which babies have been deprived of oxygen at birth because something may have gone terribly wrong in the delivery process should be reviewed.  Regardless of the patient’s age, any case involving negligence that results in profound harm to one’s quality of life must be examined.

Plaintiff’s lawyers have found that the medical community can be close-knit, if negligence occurred, it may be necessary to have a doctor from a different geographic area review the case to serve as an expert.  Of course, defense counsel then bring out at trial that the doctor is from out of state, trying to imply to the jury that he or she is hired strictly for money or is less qualified.  It can become an issue of breaking the circle of protection within the medical community.

Infections due to the lack of sterility in a hospital or surgical room environment are causing horrendous injuries.  These cases, too, are costly and time-consuming to prove.  Botched orthopedic cases are more common than one thinks, but lawyers must investigate the opinions of subsequent treaters.

Surgical cases also deserve attention.  A bad outcome does not necessarily mean there was negligence.  Lawyers must still have an expert who will testify that a deviation from the standard of care occurred.  Causing a permanent medical problem involving an area that wasn’t previously affected, allowing things to get out of control when there were clear signs for a competent surgeon to have avoided the problems, or important medical personnel being distracted or simply missing in action are all red flags that deserve a further look.

Contrary to the tales of the medical community and insurance industry, the truth is that Illinois has witnessed a steady decline of medical malpractice cases being filed since 2000.  Lawyers have learned well that in marginal liability and minimal damages situations, the expense and expertise required to handle these matters are not warranted.  Insurers do not settle cases without merit and juries often do not award money to plaintiffs with meritorious cases – and never award money to plaintiffs in truly “frivolous” cases.

The unfounded scary stories of doctors leaving communities infiltrate jurors’ thoughts.  It is an uphill battle to convince 12 jurors that doctors who went through years of schooling and training could be negligent.  Part of the convincing involves explaining that good people can be careless, that they can have a bad day, and that a doctor can be negligent even without the intention to hurt a patient.

Jurors have accepted that notion, as is evident from verdicts, but the success rate at trial in Cook County hovers around one-third.  That means two-thirds of the time, jurors side with medical professionals.  All the more reason that plaintiffs’ lawyers must do a careful job in case selection and work-up.

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