Here’s a little secret that few medical malpractice lawyers will share with you: the key to winning a plaintiff’s medical malpractice case has nothing to do with your trial skills. Success hinges on something far different. Your success with a plaintiff’s medical malpractice case depends (almost) entirely on one thing: CASE SELECTION.
Even an incompetent trial lawyer can win a malpractice case that has overwhelming merit and vice versa, the most highly skilled trial lawyer will almost always lose a malpractice case that has little merit. Okay, this isn’t rocket science, but what is the secret to case selection? This is our process for evaluating malpractice cases.
Step #1: The Case Evaluation Begins with Damages
Your case evaluation of a medical malpractice claim begins with damages. Without substantial or catastrophic damages, there is no case. This is the one golden rule of a plaintiff’s medical malpractice firm.
Okay, but what is a substantial or catastrophic injury or damages? The damages in every case must fall into at least 1 of 5 categories:
- Death
- Brain damage
- Paralysis—partial or complete
- Blindness—in at least one eye
- Loss of limb
Your case evaluation begins, and usually ends, with this question. Does your case fall into 1 of the 5 categories? If not, you have to reject the case, even if the deviation from the standard of care is clear.
Rejecting Cases with Brutal Honesty
Whenever you speak with a prospective client, always ask this question: HOW ARE YOU DOING NOW? If the client has recovered, e.g., back to work, not treating for the injuries, the damages are not substantial or catastrophic. When the client tells you that they’re doing okay, it’s time to end the phone call.
You have to be brutally honest with clients. Tell your client:
“I would love to help you, but we only handle catastrophic medical malpractice, and fortunately, your case does not have the damages that we require to accept a case.”
Be direct and right to the point. 9 times out of 10, your client will appreciate your brutal honesty. Instead of spending one hour on the phone, you limit the phone call to 10 minutes. Don’t refer the client to another lawyer unless you believe the case has merit.
Go one step further by sending the client an email with a link for filing a complaint with the Department of Health. If your client expresses appreciation for your time and advice, ask for a review of your firm’s profile on Google My Business. Online reviews are marketing gold!
Step #2: How to Evaluate the Merit of a Medical Malpractice Case
Frequently, referring lawyers will freely admit that they have no clue how to evaluate the merit of a medical malpractice claim. It’s much simpler than they think. Whenever you evaluate a malpractice claim, answer this question:
“Would a jury be able to easily understand this?”
If a jury will not be able to easily understand the claim, your client will almost never win. Here’s a fact pattern from one of our cases: “My daughter went to the emergency department complaining of severe chest pain, and the doctor did no testing and sent her home. 3 days later, my daughter died of a heart attack.”
Almost any juror would be able to grasp the duties violated by the doctor and hospital. If your case is complex and difficult to evaluate, you will lose—jurors hate complexity. Complexity is the enemy and simplicity is your best friend.
One Question You Must Be Able to Answer
You must be able to answer this one question, “What is your theory of liability?” You should be able to answer this question with ease, namely, “the hospital failed to do testing to rule out a heart attack.” Your preparation and focus flow from your theory of liability.
When you have a simple theory of liability, the depositions become easy. You know exactly what to ask and how to respond to the defendant’s excuses. Specifically, you ask the defendant at their deposition:
“When a patient presents with the signs and symptoms of a heart attack, aren’t you supposed to do tests to rule out a heart attack?”
The defendant hems and haws and tries to avoid answering the question. The defendant’s excuses don’t matter—you just caught them in a videotaped deposition trying to avoid a simple question. This, my friend, is how you win a medical malpractice case.
Step #3: Screening Complex Cases for Merit
Every so often, you’ll get a case that has catastrophic damages (e.g., death, paralysis, etc.), but it’s hard to determine whether liability exists. Even when you spend hours researching the medicine, you’re left scratching your head. This happens to even the most experienced plaintiff’s malpractice lawyer.
Don’t give up. Develop a relationship with a physician who is skilled at evaluating the merit of malpractice cases. A expert/physician who understands the nuances and difficulties of a malpractice case and can provide honest, objective advice on a moment’s notice. Having a relationship with this expert/physician is invaluable.
For 20+ years, I’ve worked with a physician/surgeon, Charles Gabelman, M.D. (cgabelman@cggexpertconsulting.com), who is an expert at evaluating medical malpractice cases and understands the legal factors almost as well as the medical. I speak with Dr. Gabelman almost daily about the strengths and weaknesses of potential cases and he has a meticulous eye for detail. Even better, Dr. Gabelman can refer medical experts in almost any medical specialty. Simply put, our practice would not exist without Dr. Gabelman.
Our System for Evaluating Cases
When a new case is referred to our law firm, our intake specialist calls new clients and enters the data in a intake software, Lead Docket (LeadDocket.com, 304-381-1849). Lead Docket is a software used to organize our leads, prioritize the leads based upon merit, and provides customizable questions for each of our 13 practice areas in medical malpractice, e.g., birth injury, delayed cancer diagnosis, etc. Lead Docket is the best intake software on the market.
On the first day of our contact with a new client, the new lead is either “REJECTED” or moved to “UNDER CONSIDERATION” in our case management software. A rejection letter is mailed to our client and referral partner for every rejected claim. If the case is “under consideration”, the case is opened in our case management software.
Once the new lead is entered in our case management software, we make a preliminary determination of merit. Specifically, are the damages substantial enough to warrant the expense of getting the medical records? If the case involves catastrophic or substantial damages, we get the medical records and in most cases, I review them with our expert/surgeon to determine the strengths and weaknesses of the claim.
The Highest and Best Use of My Time
Almost every day, I send at least one email updating one of our referral partners about the status of a referred lead. Why do I do this? Because no one else is. 99% of law firms take their referral partners for granted and simply send generic rejection letters with no explanation of the basis for their decision. This is a HUGE missed opportunity.
Every time I send an email update, I am building rapport with our referral partners. Our referral partners can see the work we’ve done on the case and the details of our evaluation. Even if we reject the case, we are virtually guaranteeing that our referral partner will refer their next case to us. And is this worth 30 minutes of your time? We’ll let you be the judge.
