Medical malpractice law is damn hard for a plaintiff’s lawyer. There’s really nothing easy or simple about it and even with the strongest cases, you will often be taken to court (and verdict). Then, why would anyone do this line of work?
It boils down to one reason: you are passionate about the rights of the disabled. You work long hours and stay up nights stressing about your cases, but in the end, there’s nothing you’d rather do. Medical malpractice law is what you were born to do.
The Advantages of Medical Malpractice Law for a Plaintiff’s Lawyer
Medical malpractice law has a few advantages compared to personal injury law. First, there are rarely issues with inadequate insurance coverage. Most physicians have insurance coverage in a minimum of $1,300,000 and their medical group usually has additional coverage of at least $1,000,000. And if you know how to screen cases for merit, most of your cases will settle either before or during trial.
There is virtually no competition for medical malpractice cases. Due to limits on legal fees in New York, very few law firms accept medical malpractice cases. And there is a high barrier to entry into medical malpractice law, as it takes about 10 years for a lawyer just to become competent. The risks and costs of medical malpractice law are high and this deters lawyers from accepting malpractice cases.
Rather than competing with other firms for personal injury cases, your peers will refer their medical malpractice cases to you. The lawyer-to-lawyer referral relationships will reduce the necessity of spending big on marketing.
20 Secrets for Building the Medical Malpractice Law Firm of Your Dreams
So, how do you begin building a plaintiff’s medical malpractice law firm? Don’t listen to your peers who tell you to avoid malpractice law and instead, follow these 20 secrets in marketing, law firm management and case management for building the medical malpractice law firm of your dreams.
MARKETING
Secret #1: Market to Your Ideal Client: Plaintiffs’ Personal Injury Lawyers
Your highest value cases will almost always be generated from lawyer referrals. Hence, your marketing plan should be devoted to acquiring and nurturing lawyer referrals.
Where do you begin? Update a referral partner about the status of a referred case at least once a day. Your referral partner will love this because there are no other lawyers doing this. Your updates build rapport with your referral partner and virtually guarantee their next referral.
There is no better marketing tool than a monthly print newsletter that is designed for your referral partners. Just give your best tips about marketing and managing a law firm and hold nothing back. A monthly print newsletter will keep your law firm top of mind with your referral partners. (Congrats to Chuck Boyk, Esq. of Toledo, Ohio, in launching his firm’s monthly print newsletter for referral partners).
MARKETING
Secret #2: Expand Your Firm’s Presence into Non-Competitive Markets
Even in ultra-competitive markets like New York City, there are small enclaves with few injury law firms. We opened our firm’s satellite office in Riverdale in the Bronx based on the relative paucity of injury law firms in Riverdale. You can expand your firm’s digital footprint with satellite offices that are relatively cheap (monthly rent that is less than $1,000).
Build your firm’s presence in the new community with Google reviews and ideally, a trade name, e.g., The New York Injury & Malpractice Law Firm, P.C., and you will quickly begin to show up first on Google My Business (GMB) and dominate online searches for the community. Credit to Seth Price, Esq. of Price Benowitz, LLP in Washington, D.C., for this invaluable tip.
MARKETING
Secret #3: Leverage a Trade Name for Your Law Firm
A trade name for your law firm is invaluable, but don’t take my word for it. Owners of highly successful injury firms, such as “Sweet James”, will tell you that their trade name differentiates them from the generic, “Smith Law, P.C,.” in the marketplace. Not only is a trade name good for branding, it will shoot your law firm to the top of Google My Business.
LAW FIRM MANAGEMENT
Secret #4: Leverage Artificial Intelligence
Use artificial intelligence to perform the functions of your team. Artificial intelligence is not the future—it is right now. If you are not leveraging AI, you can bet your competitors are.
Document Creation for Case Management: Eve creates discovery responses and medical chronologies of voluminous medical records. You upload the “Blueprint” of your firm’s discovery demands and Eve continually improves as it learns your preferences for discovery responses, e.g., standard objections. Eve can replace many of the tasks for your paralegals and secretaries.
Calendar & Email Management: Microsoft’s CoPilot creates email responses, manages your calendar and summarizes meetings held via Teams. You can give CoPilot access to Microsoft Word and Excel and in seconds, it will provide you with an analysis of your firm’s expenses in the areas of case management (divided between active and potential cases), payroll, marketing and overhead.
Legal Research & Expert Witnesses: Lexis A1’s Protégé creates legal summaries of the case law and provides background information about expert witnesses. There is less of a risk of a hallucination (incorrect information generated via AI) because Protégé relies only upon Lexis’s database.
Drafting Legal Memoranda/Trial Briefs: If you do nothing else, you will be stunned by what ChatGPT can do for your law firm. ChatGPT will help you create a compelling opening statement and questions for jury selection. We use a private ChatGPT to analyze the strengths and weaknesses of new malpractice cases. We ask ChatGPT to analyze defense memoranda and generate responses. Your efficiency will be instantly changed.
Video Creation and Intake Agents: Hey Gen creates AI generated video for your law firm. You create an avatar video and a script and Hey Gen will create a customized video within minutes.
Meet Gabbie handles intake with an AI agent. The results are far from perfect and AI is not ready to handle intake for our firm, but the day is coming that your clients (and you) will not be able to tell the difference between a human and an AI agent. AI intake agents will become the norm soon.
LAW FIRM MANAGEMENT
Secret #5: Insist upon FULL RETROACTIVE DATES COVERAGE
for Your Malpractice Insurance Policy
Professional liability insurance policies determine coverage by 2 dates: #1: the date of the alleged negligent act (aka, occurrence made), and #2: the date when you were notified of the claim (aka, claims made).
Coverage only exists on your malpractice policy if the negligent act occurred during the policy period and you were notified of the claim during the policy period. With standard malpractice coverage, there are many scenarios that can result in the absence of malpractice coverage for your law firm, but there is one quick and easy fix to this dilemma: FULL RETROACTIVE DATES COVERAGE.
Your professional liability insurance policy is worthless without a retroactive date that dates back to the opening of your law firm. The full retroactive dates coverage ensures that all claims will be covered by your professional liability policy regardless of the date of the alleged negligent act.
Even if the alleged negligent act occurred 12 years ago, the full retroactive coverage ensures you will have coverage. Pay the extra money for full retroactive dates coverage in your malpractice policy. We recommend Charlie Culverhouse of Forge Consulting for professional liability insurance for law firms.
LAW FIRM MANAGEMENT
Secret #6: Never Agree to Confidential Settlements
As a value-oriented law firm, you must have values that are sacrosanct. The most important value is that you will never agree to a confidential settlement. Why? You are not merely compensating your clients for their harms/losses, you are improving the quality of medical care for other patients in the future. That is not possible with a confidential settlement.
Even worse, a confidential settlement exposes your client to the risk that their monetary recovery will become taxable income. And that will be a problem as you could face a potential legal malpractice claim.
Don’t take my word for it. Draw a line in the sand with your next case: tell the defense attorney that you will not agree to a confidential settlement under any circumstances. Every single time the defense attorneys will back down. And after a while, defense attorneys will stop asking you for confidentiality.
LAW FIRM MANAGEMENT
Secret #7: Outsource the Work that You Hate
Stop doing work that you hate. First, create a list of the top 5 tasks that you hate doing and then delegate those tasks or, better yet, outsource them. You aren’t serving your clients well by doing work that you hate.
Our firm outsources lien resolution (PrecisionResolution.com), probate (former New York State Surrogate’s Court Justice), medical records retrieval (Arctrieval) and post-settlement financial management (Timothy Denehy, CFP of Forge Consulting). The expenses are paid by our clients at the end of the case and we focus on the work that we love doing. This is a win-win for our clients and our firm.
LAW FIRM MANAGEMENT
Secret #8: Protect Your Clients’ Settlement with CDARS Bank Accounts
When you settle a case that requires court approval, ask for court permission to deposit the settlement funds in a CDARS (Certificate of Deposit Account Registry) bank account. Unlike your firm’s escrow account, the funds deposited in a CDARS account are fully FDIC-insured and your client receives the benefit of interest on the funds. If your bank does not offer CDARS accounts, find one that does.
LAW FIRM MANAGEMENT
Secret #9: Finance Case Expenses with a Lender
Medical malpractice cases are expensive and just a few substantial cases can easily overwhelm your firm. Let a case expense financing company pay the case expenses and at the end of the case, the borrowing costs are charged to your clients. Case expense financing frees up cash flow for marketing, operational expenses and occasional vacations. Our firm has never had a client who did not agree to pay the borrowing costs and we pay virtually nothing for case expenses.
Advocate Capital (www.AdvocateCapital.com), based in Nashville, Tennessee, provides case expense financing for plaintiffs’ firms. Your firm won’t have to stress about the costs of retaining the best expert witnesses or the costs of an accident reconstruction because Advocate Capital will take care of the expenses. Advocate Capital has been an indispensable partner for our law firm.
CASE MANAGEMENT
Secret #10: Get Your Cases to Trial by Measuring the
TIME ON DESK & The EXTENSION SCORECARD
The most important number for your law firm is the number of CONFIRMED TRIAL DATES. Trial dates make money for your law firm, so you have to focus on aggressively getting your highest value cases (aka “A” cases) to trial.
To get your best cases to trial, you should focus on two numbers: #1: TIME ON DESK, and #2: The EXTENSION SCORECARD (credit to Lin McCraw, Esq. of McKinney, Texas, and Ron Kramer, Esq. of Salt Lake City, Utah, for these tips).
TIME ON DESK: Measures the time between the commencement of the lawsuit and the current time. For an active lawsuit, if the lawsuit was commenced on August 1, 2024, and current date is August 25, 2025, the TIME ON DESK is 1 YEAR AND 25 DAYS.
Time on Desk should be measured for every active lawsuit in your law firm. The ideal Time on Desk for an active lawsuit is no more than 1 year and 6 months. This can be overly ambitious in certain venues with congested dockets, such as the boroughs of New York City, where lawsuits can average longer than 3 years.
Your intake team should measure TIME ON DESK for every potential case. If the client initially contacted your firm on July 1, 2025 and the current date is August 25, 2025, the Time on Desk is 1 MONTH AND 25 DAYS. The ideal TIME ON DESK for a potential case is no more than 90 days. 90 days should give you enough time to get the medical records and evaluate the claim.
EXTENSION SCORECARD: Never adjourn any deadlines in the court’s scheduling order for discovery (with some exceptions, such as medical or family emergencies). If there is an extension of a court-ordered discovery deadline, there must be a good explanation.
Keep track of the number of extensions of court-ordered deadlines in every active lawsuit. If there has been 1 extension, the EXTENSION SCORECARD is “1”. Your goal is to have zero extensions of court-ordered discovery deadlines.
The TIME ON DESK and EXTENSION SCORECARD should be documented and discussed at monthly accountability meetings where your team meets to discuss the status of every active lawsuit. Celebrate when your active lawsuits are resolved in less than 1 year and 6 months. This is great news for your clients and your firm.
CASE MANAGEMENT
Secret #11: Confirm that You Possess a Complete Set of
Medical Records with an Original Chart Review
A certificate stating that the copies of the medical records are accurate and complete is meaningless. 9 out of 10 times the “certified” medical records are incomplete and missing crucial parts of the records. This is a problem because you and your experts are relying on an incomplete set of medical records. And that, my friend, can be devastating to your case.
The only way to confirm that you possess a complete set of the medical records is an ORIGINAL CHART REVIEW. During an original chart review, you inspect the original electronic medical records at the hospital or doctor’s office and confirm that your copy of the records are identical to those possessed by the hospital/doctor.
Defense attorneys will argue that an original chart review is unnecessary, since they’ve sent you a certified copy of the medical records. Nonsense! Federal law and section 18 of New York’s Public Health Law give you the right to an original chart review and you should exercise this right in every lawsuit.
CASE MANAGEMENT
Secret #12: Depose Non-Party Witnesses Early in the Lawsuit
Your job is to move your cases as aggressively as possible through discovery. Rather than waiting until after the parties’ depositions, you should conduct non-party depositions as soon as the defendants have formally appeared in the lawsuit.
Disclose a list of the nonparty witnesses relating to liability and damages in your initial discovery responses and tell the defendants’ attorneys that you will produce the witnesses for their depositions NOW. Invariably, the defendants’ attorneys will ignore your notice of these witnesses and you can later take the position that the depositions of the non-party witnesses were waived by the defendants.
CASE MANAGEMENT
Secret #13: Have a High Threshold for Merit in Case Selection
Do not accept cases that have questionable merit, even when there are catastrophic damages/injuries. If you don’t feel confident in your client’s cause, take a pass on the case. Let some other lawyer make this mistake.
CASE MANAGEMENT
Secret #14: Home Visits with Your Clients
The only way to understand the nature of your client’s disability is to visit them in their home. See how your client lives and get a better understanding of their daily struggles. Your clients will appreciate the personal touch and your home visit will build the relationship with your clients.
CASE MANAGEMENT
Secret #15: Make Motions for an Expedited Trial Date for Terminally Ill Clients
If your client has a terminal illness (e.g., stage IV cancer) arising from the defendants’ alleged negligence, make a motion via Order to Show Cause for an expedited trial date. Defense counsel will rarely oppose your motion and this will get your case to trial in less than 12 months. There is no better way to expedite trial dates.
CASE MANAGEMENT
Secret #16: Be Real with Clients about the Chance of Success
We tell every client that the chances of success are 50/50, even under the best of circumstances. Why? Malpractice cases are hard to win and jurors have a bias against malpractice lawsuits. This lowers the expectations of your clients and builds trust.
CASE MANAGEMENT
Secret #17: Make Motions for the Unredacted Audit Trail
The audit trail is usually the only way to prove an alteration of the medical records. The audit trail will show the date and time of every entry in the electronic medical records, the name of the person who made the entry and the substance of the change to the medical records, including Cover Your Ass (“CYA”) changes made after the treatment was rendered.
Under federal law, the audit trail is part of the medical records and as such, your clients are entitled to get it during discovery and even presuit. The is ample case law, in New York and other jurisdictions, establishing your right to obtain the audit trail, but in almost all cases, defense counsel will object to such disclosure. In these cases, you should make a motion to compel the disclosure of the audit trail. (we will provide a sample motion upon request to jfisherlawyer@gmail.com).
CASE MANAGEMENT
Secret #18: Get Stipulations (not Motions) for Court Approval of Settlements
When court approval is required for a wrongful death or infant compromise settlement, submit a stipulation for court approval (rather than making a motion). In most cases, defense counsel and the Judge will sign the stipulation and you will save the time and trouble of making a motion for court approval. You and your client will get paid much quicker.
CASE MANAGEMENT
Secret #19: Plan Every Step Needed for Trial
There are certain steps that are required for every trial—plan these steps in advance and assign dates for every action item. As you get closer to trial, the work will be done. (we will provide a plan for trial preparation upon request to jfisherlawyer@gmail.com).
CASE MANAGEMENT
Secret #20: Put Expert Witnesses on a Budget
If you hire an expert without a budget for their fees, you are giving them carte blanche to charge whatever they want. This is a recipe for overbilling by the experts.
In the beginning, ask the expert how much money they need for their review of the file materials. Send the retainer fee with a budget that specifies that if the expert needs additional time that will result in a fee greater than the retainer fee, they must get your approval in writing. Most experts will agree and if they don’t, you don’t want to work with them. Placing experts on a budget has saved our clients and our firm a lot of money. More important, we keep costs contained.
