While plaintiffs in tort trials win slightly more often that not (about 52%), the success rate for medical malpractice plaintiffs is relatively abysmal. In those cases, studies have found that defendants prevail somewhere between 73%-81% of the time. It may be that there is something fundamentally different between medical malpractice cases and other types of personal injury. Whatever the reason, the lesson for practitioners is the need to choose your cases wisely.
Jane Muir and Hector Lombana suggest that every lawyer ask herself two fundamental questions at the outset of a potential case: “Who cares?” and “So what?” Rather than the callousness that the questions might suggest, these initial inquiries ensure that both attorney and client embark on an appropriate course of action with their eyes wide open.
Who Cares: Evaluate the client and the injury: are you appalled by what happened? Will a jury be emotionally invested in righting this wrong? Will a jury feel strongly enough to wade through mountains of expert evidence?
So What: What are the damages available? What are the chances of prevailing? Medical malpractice cases require a significant amount of time and money, and if the injury is not truly debilitating, taking the case to trial may not be a wise choice.
When the potential claimants and defendants have been identified, the final concern before accepting a malpractice case is whether the statute of limitations or statute of repose is distant enough to complete the investigations required pre-suit. The critical moment is the date the alleged malpractice occurred or alternatively the date the claimant came to learn of the malpractice. Determining this date will inform you as to whether selecting the case would force you to race to beat the clock and complete exhaustive pre-suit notice and investigation requirements. To avoid the sprint it is advisable to file a Petition for Extension of Time under Section 766.104(2) of the Florida Statutes, which tolls the time to file a Notice of Intent by 90 days. Doing so will ensure a careful investigation and, in the event you choose not to continue the representation, will allow the claimant ample time to obtain another attorney’s help.
Because few malpractice cases statistically are won at trial, when dealing with case selection practical concerns prevail over legal and procedural issues. “Who cares?” and “So what?” are the two questions that will protect an attorney from making a poor choice in selecting a case. “Who cares?” is the question to ask yourself about the injury and the damages. If you are not appalled by the injury, the case is not likely worth taking. “So what?” is the question to ask about the claimant. If the claimant is not someone for whom the injury is truly debilitating physically and psychologically, then the case is still not a good choice. Both questions must have answers for an attorney to consider accepting a medical malpractice case.
In some cases if an individual cannot afford an attorney, here’s some tips and ideas how you can get help.