FIVE TIPS TO GETTING READY FOR YOUR FIRST CONSULTATION WITH A MEDICAL MALPRACTICE ATTORNEY

This post was authored by Jon Stefanuca and posted to The Eye Opener on July 18th, 2011.

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No one ever wishes to be injured as a result of medical negligence. Nonetheless, the lives of thousands are affected every year as direct result of medical errors. How would you handle such a situation? Where would you go for answers?  How do you cope? And most of all, how do you move on with your life when your life, as you know it, has changed because of a medical mistake?  For some people, consulting with a medical malpractice attorney is a prudent choice. If you have come to this conclusion, you might want to call an attorney. Let’s say you already have a scheduled appointment. How do you prepare for this meeting? What do you need to consider before you even step foot into a lawyer’s office?  The purpose of this blog is to give you some guidance.  Here are five (5) tips to get you ready for your initial consultation:

Consider your purpose.  First and foremost, make sure that you know why you are considering an action against a health care provider. Perhaps, this determination is the most important one you will have to make in the entire litigation process.  Invariably, the reason why a person decides to sue will dictate the nature of the litigation process and even its eventual outcome. Medical malpractice cases should only involve medical negligence that results in injury.  Ask yourself: Do I have a good faith basis for contacting a lawyer?  If the answer is “yes,” you are on the right track.  You don’t have to be a medical expert or an attorney to have a gut feeling about the case.   The important thing here is to avoid litigation for the purpose of revenge or annoyance. Such cases are doomed to fail.

Do you have an injury? As you prepare for your initial meeting with a lawyer, consider if the case has some cognizable injury.  Remember – it isn’t enough that a health care provider did something wrong, the negligent act must result in injury.  All medical malpractice actions are fundamentally cases of negligence. Generally speaking, in order to prevail on a negligence claim, the plaintiff must prove that 1) the health care provider breached an applicable standard of care (i.e., a wrongful act took place), 2) the breach of the applicable standard of care directly and proximately (lawyers are still fighting about the meaning of “proximate”) caused injury to plaintiff, and 3) the plaintiff sustained a discernible and identifiable damage(s).

So, ask yourself: Do I have an injury that was caused by the action or inaction of a health care provider? If the answer is “yes,” you are on the right track. Remember, absent an injury, a Plaintiff will not be able to prevail against a health care provider even if the health care provider breached an applicable standard of care.  Here is an example, let’s say that you or a loved one needed a CT scan to confirm a ruptured appendix, which the physician failed to order. But, around the same time, another physician ordered the CT scan, which revealed the ruptured appendix. Assume further that the first physician’s failure to order the CT scan did not result in any meaningful delay in treatment. Under such circumstances, one could hardly argue that the first physician’s conduct, even if negligent, caused any injury. The lesson here is to simply make sure that you have an injury as you contemplate bringing a lawsuit against a health care provider.

Examine your damages.  Once you have determined that a tangible injury exists, be prepared to discuss the full extent of your injury(s) during the initial consultation.  Your initial consultation is not a time to be shy about your experience, your injuries, and your suffering.  I know; it is counter-intuitive. After all, there are better things to brag about than your suffering. I recommend that you come up with a complete list of all injuries suffered as a result of the medical error. As you brainstorm, keep in mind that your injuries can be both economic and non-economic. Economic damages are financial damages sustained in the past, present, and future. Such damages will generally include the cost of any medical treatment for injuries related to the alleged negligence (even if your insurance is covering these expenses). They may include further medical costs as well as other costs arising from your injuries (e.g., if you have developed a disability, you may need house modifications, a new car, nursing assistance, and assistance with household activities, among other things).  Economic damages can also include lost earnings (both past and future), loss of retirement benefits, and even loss of earning capacity among many other things. Non-economic damages will generally include damages for pain and suffering caused by the negligent conduct of the health care provider.  Make sure that you consider all of your damages thoroughly before meeting with an attorney.

What is your gut feeling? Oftentimes, your gut feeling about what went wrong, is in fact what went wrong. Medical malpractice cases will often involve very complex medical issues, spanning multiple specialties.  It can be a daunting task to get to the bottom of things in medical malpractice cases. Sometimes, it takes months of medical reviews before the negligent conduct and causation are determined. As such, clients are sometimes understandably reluctant to share what they think constituted the act(s) of negligence.   Still, even after months of investigation, the lawyer’s theory of liability will invariably  end up being the same or similar to that of the client. For this reason, it is again important to be complete and willing to share as much information as possible during your first interview. It may help the lawyer narrow down the issues in order to expedite the review and investigation of your case.  If you already have some or all of your medical records, it is a good idea to bring them with you. Any other documentation, which reflects the events surrounding your care, may be very helpful as well. Also, make sure to provide the lawyer with a chronology of any and all care rendered to you around the time of your injury and subsequently.

Rely on your loved ones. You don’t have to come to the initial interview alone.  Injuries resulting from medical negligence can be quite severe and life changing. Sometimes, it is simply easier to try to forget the events surrounding the injury. Other times, because of the medical condition (e.g., coma), the patient has little or no relevant information to convey. However, it is not uncommon to have family members or friends who may have direct or indirect familiarity with the medical care or the events surrounding your injury. Such friends and family members are an invaluable source of information. Ask them to talk to your attorney as well. Additionally, it is not easy to relive a traumatic experience alone. If you can, why not rely on someone who loves and cares about you?

I hope that these tips are helpful.  I  invite all of our lawyer friends to contribute to this discussion. What else can a perspective client do to prepare for an initial meeting with an attorney? If you are a patient, what do you expect from the attorney at the time of your initial consultation?

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