Anyone looking at the back of a phone book (if you still use that old thing), a bus stop bench, or watching the Red Wings play hockey, you know that there are adds for lawyers everywhere. With that, it would seem that finding counsel for a med mal case would be easy-peasy.
Because of an ever-rising bar to litigant a med mal case (see my previous post on filing a claim), which includes capping the amount a plaintiff may be awarded, the pool of potential lawyers willing to take on a med mal case has shrunk since the enactment of “tort reform” measures. Texas, with a cap on non-economic damages, has seen a drastic reduction in the number of lawyers willing to invest in a case. The American Bar Assoc. writes:
But with new restrictions on medical malpractice suits, many otherwise meritorious cases are no longer economically practical, Cunningham explains. The limits include a $250,000 cap on noneconomic damages such as pain and suffering—a cap that hits the elderly and the poor especially hard, since they have little or nothing to show for lost earning power under economic damages.
So, finding a good med mal attorney is not as easy as flipping through the yellow pages.
That is where we started. We called up a couple of local attorneys (we live in a small town, so the local pool was already small), and met with a few. In order to determine whether or not they will take a case, counsel will ask for your entire medical history. This is understandable, but if you are in any way private about your health or body, mortifying. This little bit of wound salt-additive is compounded when counsel looks over the information and determines that, given the high bar of litigating a med mal case, that they will take a pass.
So, let’s just to the other side of the lawyerly table.
As a med mal attorney what am I going to look for in a case that I will take up. That is, I will not take just any case that walks in off of the street. I am under no obligation to provide my services to any and all. I can be, in fact I must be, choosy. Why? In order to file a med mal case, I must comb through all of the medical records I can obtain (hopefully in such a way as to not give potential defendants a tip-off of an upcoming filing) and make sense of it all. I will then need the aid of a trained medical reader to help fill in the gaps of my knowledge.
If I am a big firm, like the Law Offices of Sam Bernstein, I will hire nurses to filter the intake of new cases. They will take the first calls, ask a lot of questions, and only those that pass this first gauntlet will I then take to the next level of review. With multiple levels of review, I ensure that I only take cases which I have a great chance of winning. I increase my potential case intake by sponsoring Detroit’s hockey TV coverage–even to the point of naming the set where the sportscasters sit and talk between periods the “Call Sam” studio. By such advertisements, I guarantee that mine will be the first call potential clients make, allowing me to winnow all the further.
It is not my concern whether the cases I turn away have merit. It matters, in these economic times, whether I can recoup my investment and actually win the thing.
And what are my investments? I will take a med mal case on contingency. This means that I don’t get paid unless I will. It also means that I can only get, because of law, a maximum of 30%. With caps, I want to take cases where the investment is low and the probability of winning it high.
Back to the victim side.
One quickly realizes that a search for an attorney should be more refined than a simply web search of the locals. In fact, one should consider that some attorneys specialize in type of cases, and that one should look for specialization publications and the like to see who the players are. These are some pretty savvy searches, often beyond the reach of the average victim (old, poor and otherwise on the lower-end of the Socio-Economic Spectrum).
So, with such a savvy search requirement, that statue of limitations (SoL) deadline of two years becomes all the more important. Given that medical records need to be assembled, sent, read and evaluated, possibly by more than one firm or office, the ticking clock goes swiftly by. The only thing that will stop (the legal term is “toll”) the SoL it the Notice of Intent, and then only for 182, after which the clock starts up again.
So, don’t delay. Choose well. And, don’t be the unfortunate few who sends out records for counsel review only to have them returned with mere weeks left before the SoL deadline with a “no thank you” note attached. If that is the case, you may have to it alone.
- Judge upholds Texas’ 2003 medical malpractice tort reform (pathologyblawg.com)