The Law: Trial Lawyers Tell All
They told us what they look for in a juicy malpractice claim. Now we’re telling you.
By Shirley Grace Why do patients sue?
Because they perceive malpractice, says Manhattan plaintiff’s attorney Jeff Kimmel.
A patient’s perception may be influenced by actual medical facts, but his relationship with you and your staff and how well he thinks you’ve handled a negative medical outcome weighs very heavily in his decision to sue. “Almost everyone says that ‘If the doc had only apologized or been nice to me, or [if] he would’ve come to me,’” the lawsuit could’ve been averted, says Kimmel, a partner in the law firm of Salenger, Sack, Schwartz & Kimmel. “‘But he tried to cover it up, or ignored it, or had been arrogant about it. Now it’s war.’”
Of course, a bad treatment outcome does not usually mean malpractice. People sometimes die during procedures. Complications do occur. Whose fault is it? Sometimes it is the doctor’s; more often, it’s not. That’s why Kimmel and other plaintiff’s lawyers are very selective in the cases they’ll take (and still lose more often than they win, on average). Here’s one of their secrets: They’re not looking merely for cases of physician error; they’re also looking for unsympathetic defendants — for physicians who seem unfeeling. Take steps now to protect yourself. Here’s how, straight from the ones on the other side of the courtroom.
What makes a good case?
For trial lawyers, establishing the facts is the first important step. What exactly happened? When did it happen? Who was involved? Where does it leave the patient? This is very specific evidence, but it must be in place to support the claim, says Kimmel, either “in the records or strikingly omitted from the records.” Kenneth Levine, a 20-year veteran plaintiff’s attorney based in Boston, says, “lawyer’s opinions don’t matter as much as it might seem.”
So, the documentation in a patient’s chart — or lack thereof — is of supreme interest to a trial attorney. So is the damage, which must be life altering and severe. A scar that turned out a half-inch longer than expected? Un-uh. Loss of brain function? Bingo. Continued...
