Building a Malpractice Case and Knowing the Pitfalls

By: Attorney Andrew M. Rockman

Medical malpractice claims have always created anxiety and some fear in the minds of many attorneys, often with good reason. If properly selected, they are claims usually involving medically sophisticated issues, steps that are necessary to insure the client's story can be told in Court, significant expense, a strong defense bar, and substantial time and financial responsibility for the attorney who is willing to accept them.

 The cases involve knowing how to identify both medical and legal questions, that often differ from the more typical personal injury claim, and where to go for answers to the medical issues raised. These questions will involve those your own experience reveal, as well as those raised by the sources you must use to discover the questions that need answering. In addition, there will be defense formulated issues and questions your malpractice experience should compel you to anticipate.  These will need early answering, to make sure you have properly identified what your case, client and experts will face, should you decide to go ahead.

This is best done early, even before suit, if possible, to avoid the money pit/trap any poorly selected or poorly prepared medical malpractice case can become.  Unlike the more common personal injury claim, experts are needed to prove both liability, damages and the connection between the two. The major investment and hurdle to winning is often in doing what is necessary to clear the liability hurdle and to connect it to the damage obstacle. Since the patient usually comes to medical attention with an injury or illness,  the causal connection to the end result is something your client may not easily appreciate as the problem it can often become. It is a hurdle that must be understood and cleared early.

If there is no appreciation for the need to differentiate for the jury the end result from proper treatment versus the malpractice caused outcome, you can find yourself, along with your client, well into the responsibilities, obligations, and financial commitment of the suit, finding out that the clearing the liability/fault hurdle might just have led you to  the far more difficult damage causation "jump" you had not anticipated to be so high and wide.

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