Howard Kapp, Esq.
How to evaluate medical malpractice cases in
Special Issue: "Premature" Claims
There is a large group of potential clients
who contact counsel before the alleged malpractice-caused injury
has stabilized. In such cases, it may be impossible to evaluate
whether, as a practical (economic) matter the injuries justify a
malpractice case. There are frequently distinct patterns to these
types of cases.
For example, it is not uncommon for a patient
to experience some unexpected numbness (or other manifestation of
a nerve injury) post-operatively. That numbness may be very distressing
to the patient; indeed, that numbness may the result of malpractice.
Yet, fortunately, many nerve injuries will heal over a period of
a few months. Such healed injuries may not economically support
a malpractice case.
Likewise, the immediate post-operative period
is, except in obvious or extreme cases, usually a bad time to take
any definitive legal action: a patient can have a terrible post-operative
period and yet have a wonderful recovery, and, of course, visa versa.
In some cases it may take years to truly evaluate the presence or
extent of injury.
Nonetheless, irrespective of the uncertainty
of the ultimate outcome, it is imperative to remember, and protect,
the statute of limitations: the 1 year statute is triggered, in
part, by "manifestation" of the injury, even if that manifestation
is deemed too insubstantial to justify the economic decision to
proceed. This can be a legal malpractice trap: the manifestation
determination is not the same as the lawyer's practical decision
to proceed. In such cases, as in all statute of limitations situations,
diligent counsel has no choice but to assume the earliest statute
of limitations date.
In any event, in the normal "premature" case,
the following should be done promptly:
1. The statute of limitations needs to
determined and the prospective client informed of this deadline
and how his or her future actions must accommodate this deadline.
In some cases, enlightened self-protection may require that this
determination be conveyed in writing to the prospective client.
Special Issue: Delayed Treatment Issues
2. The prospective client should be instructed,
as in any potential case, to promptly gather the relevant medical
records. Since this instruction can be intimidating to many such
clients, this office, for example, provides the client with an
in-house how-to-get-your-medical-records form. This form also
has the useful incidental affect of providing counsel with an
opportunity to provide the prospective client with your name and
telephone number, thereby making a call-back more likely.
3. Since damages are already a question, the
prospective client should be directed to gather any damage-related
4. The client should be instructed to prepare
a case- and client-appropriate account of events, both to act
as a guide for counsel and to confirm matters while the memory
is fresh. Of course, this writing should be addressed to counsel
to preserve privilege.
5. The client needs to provided with specific
information as to what you are looking for and a target date.
Unless the screener is familiar with the medical, legal and practical
requirements for the decision to be made, it may be useful to
contact the medical malpractice specialist to get some direction
Frequently, medical malpractice cases
involve an asserted failure to timely treat. In these types of cases,
it is often useful to determine the key contact dates or times during
the initial screening telephone call. Even in the hands of the most
inexperienced screener, the discussion will naturally lend itself
to the proper time periods.
The relevant time periods in "failure to timely
diagnose (or treat)" cases varies widely depending on the condition
involved. For example, a delay in the diagnosis of most cancers
for weeks, or even a few months, may make no difference in the patient's
ultimate treatment or prognosis. Alternatively, a failure to timely
treat Necrotizing Fasciitis (the so-called "Flesh Eating Virus")
may turn on a matter of minutes or an hour or two. Appendicitis
cases usually turn on hours, or even a day or two.
Special Issue: Elderly Patients
There are some gross misunderstandings about
the unique situations involving the elderly. First, one should rarely
assume that a patient does not have a case due to advanced age.
Not only may some of these cases qualify as elder abuse (Welfare
& Institutions Code §§ 15657 et seq.), but many of the so-called
elderly may have been quite active before the acute onset of some
treatable condition and had a reasonable expectation of years of
general good health. Thus, some inquiry into the patient's prior
level of daily activities is generally useful.
Many "elderly" people have a right to assume
many more good years in the future. For example, a 70 year old white
female, can expect to live another 15½ years according to the BAJI
life expectancy table. Many active elderly people may legitimately
have a much longer life expectancy than might be assumed.
Special Issue: Informed Consent
Informed consent cases are of unusual interest
to legal academics; however, true, solid informed consent cases
are extremely rare. In our experience, the value of this theory
is usually wildly over-estimated by inexperienced counsel and the
In the informed consent world, "causation" requires,
in addition to the usual factors, that the plaintiff establish that
a reasonable person in the plaintiff's position would have not consented
to the procedure if he or she had been fully informed. This is an
objective "reasonable person" standard, although the plaintiff is
entitled to testify on this point. Of course, a case built solely
on a patient's purported "seller's remorse" after a failed procedure
may not be convincing to a jury. The larger truth is that most jurors
— i.e., the prototypical "reasonable patient" — will loyally follow
their doctor's advice, even as to risky or dubious matters. (The
only major exception is where the procedure was truly elective –
e.g., cosmetic – and where there was a significant risk in the procedure.)
It may be fruitful to explore this issue somewhat;
however, cases rarely turn solely on an informed consent issue.
In any case, it is useful, if not vital, to obtain any consent forms
signed by the patient. Frequently, even if that form is not helpful,
informed consent forms can be useful in other contexts as well,
e.g., to show that the defendant considered the bad outcome — which
defense counsel now claims was an well-known risk of the procedure
— so unusual that it was not even mentioned in the otherwise inclusive
Special Issue: Don't Rely Upon Your
One common mistake, in our experience, is for
the non-medical malpractice lawyer to give undue consideration,
or sometimes any consideration, to a favored doctor. Many times
such doctors get it wrong. Your "Marcus Welby" is just not the best
person to make these calls. Many, if not most, of the doctors in
the general community have been the subject of intense and prolonged
propaganda predisposing them to disfavor medical malpractice cases.
Even honest physicians may be simply unable to appreciate or overcome
this anti-litigation agenda.
Moreover, most physicians, even those experienced
in the relevant medical field, have little understanding of what
is involved a medical malpractice claim; many are frankly so limited
in their practice that their opinions outside of that scope may
be archaic or just plain mistaken. This, of course, can cut either
A recent example demonstrates this problem.
The client, a 60ish woman with insulin-dependent diabetes, end-stage
renal disease and a variety of other terminal diabetes-related conditions,
presented to a clinic for an ingrown toenail, which can be, if not
treated properly, a substantial problem for a diabetic. The toenail
was treated, but no antibiotics were prescribed. Within days, the
toe became infected and gangrene set in, ultimately resulting in
the loss of the lower leg.
The local, and very experienced, "friendly internist"
was appalled and enthusiastically recommended a malpractice action.
We rejected the case, specifically on the grounds that, first, the
patient probably would not survive long enough for us to obtain
a judgment and, secondly, her diabetes was so bad that she was bound
to lose the leg, or suffer similar injuries, soon, irrespective
of the obvious malpractice. The referring attorney, who had decided
to proceed despite our advice, called within 2 weeks to notify us
that the unfortunate lady had, within those 2 weeks, lost her other
leg, without any hint of malpractice, and, accordingly, they had
rejected the case. Her cascade to death was simply an ongoing and
What To Do Before Presenting the
Case to the Medical Malpractice Specialist.
The potential client should always be told not
to inform anybody that he or she has consulted with a lawyer or
to threaten anybody with a lawsuit. If the potential defendant learned
of the potential of a lawsuit, it is not unusual for the potential
target to re-examine the medical records with an eye towards self-preservation,
i.e., altering or "doctoring" the records.
The potential client should always be directed
to immediately obtain copies of the defendant's own records and
any hospital or other records under the presumptive control of the
defendant. Counsel should never get directly involved in this process;
at most, counsel can direct the client on the process of gathering
the medical records in the most innocent and non-threatening manner
possible. (For the same reason, never — unless it is absolutely
unavoidable to avoid the statute of limitations — serve the "90
day" notice before the records are physically in your hands.)
The assumption that a potential physician-defendant
will be too honest or too stupid to recognize, and use, the opportunity
for self-serving manipulation of the records is naive and foolish.
You should assume that the health care provider, once he or she
suspects that a malpractice claim is possible, will do anything
to protect his or her own interests. Manipulation of the records
is always a tempting target.
While it is appropriate — indeed, almost mandatory
— to instruct the prospective client to obtain "all" of the records,
there are some cases where it may be appropriate to allow the client,
solely for the screening purposes, to obtain selected records. The
most obvious example is that of a long hospitalization following
a singular liability event; such records include hundreds of pages
of irrelevant detail. This may be an appropriate occasion to contact
the malpractice specialist immediately to determine if this is possible
and, if so, what would be the most vital records.
Medical malpractice is a national epidemic,
proven by definitive studies by highly respected medical sources,
where patients with provable claims of medical malpractice are rarely
compensated. Part of this undercompensation is due to factors outside
of the control of the responsible legal community, e.g., widespread
unfamiliarity with the malpractice compensation system, lawyer-bashing
propaganda, individual ignorance of the iatrogenic cause of injury,
or refusal to sue a doctor with a pleasant bedside matter. It is
inexcusable that, in some cases, truly injured patients, or their
heirs, may be denied compensation because the first contacted non-specialist
lawyer doesn't know how to initially intake such cases. Such patients,
like any victim of compensable negligence, deserve, at minimum,
an intelligent screening of their claims.
This post is for educational and information
purposes only. It is not legal advice on any particular case, and
merely a general opinion of one California lawyer. You should not
rely on it without consulting a competent attorney in your area
about your specific case and facts. It is not intended to, and shall
not, create an attorney-client relationship.
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