You don't have to be a lawyer or a doctor to understand that, as a general rule, medical malpractice cases are complicated. Think about it. To win a case, you need not only a thorough understanding of the law, but some sound, general knowledge of the practice of medicine, too.
You need to know what legal papers to file, where to file them and when. You need to arrange for expert witnesses to testify for you to help prove the doctor made a mistake that harmed you. Discovery has to be done, that is, the doctor and possibly other people involved in your medical care and treatment have to be interviewed.
The other side wants to interview you, too. And the doctor won't be alone. He'll either hire his own lawyer, or as in most cases, his insurance company will pay for his legal defense. It's probably a good idea that you have a lawyer, too.
Finding a Lawyer
The first step, of course, is finding someone to talk to as soon as possible. You can start with your local telephone book, or with your local bar association - it's a professional organization for lawyers. And don't forget, Lawyers.comsm has an extensive listing of attorneys who practice all kinds of law, including medical malpractice. Get a few names, that way if you can't speak to someone right away, or if you don't like what the attorney has to say, you can call someone else.
In many cases, your first contact with an attorney is over the telephone. Some lawyers, though, like to meet face-to-face for the first time. In either event, once you have some names, get prepared to ask some questions. Don't be shy. You're looking to hire an attorney, not making a first date. There are some questions you need to ask, and a qualified attorney should have no problem answering them:
- How many medical malpractice cases have you handled in the past? How many have you won? How many have you lost? How many were settled out of court?
- Can the lawyer give you the names of past clients you can talk to? Sometimes attorneys get permission from former clients to use them as references. If not, try searching the attorney's name on the internet, or check the court records at the local courthouse
- Ask if she's a member of the local bar association and/or the American bar Association, and if she's on any of the bar's panels or committees. Ask if she's ever had disciplinary problems with a bar association
- How much will the attorney charge in fees? Does he charge an hourly rate, or will he take the case on a contingency fee basis? If you go to court and lose, will you still have to pay his fees or any of costs of suit, like filing fees and fees for experts?
Shortly after your first conversation or two, the attorney may decide whether or not to take your case. If he doesn't want to take the case, ask him why. If he says it's not a strong case, talk to another attorney. If he says something like, "You have a good case but I don't have time to work on it right now," he may actually think your case isn't strong enough to win. Again, talk to another lawyer. If you get that same response from another lawyer, you may want to consider dropping the case because it truly may not be a good case.
If she agrees to take your case, another meeting will be scheduled. Gather together all of your records and papers connected to the case, like receipts, medical records, treatment and test results, etc. Be prepared to sign a release allowing your attorney to get access to your medical records and to let him have a medical professional look at them to pinpoint the malpractice.
Generally, a lot of waiting. Medical malpractice cases can take a long time, sometimes years. Your attorney will keep you posted on any hearings or discovery you have to attend. Be prepared to make arrangements for time off work or for child care.
During the time between filing the case and the actual trial, it's not unusual for your attorney and the other side to talk about settling the case. Your attorney has the legal obligation to get your permission before taking or turning down any settlement offer. It's your decision. Keep in mind, though, your attorney probably has a very good idea about whether a settlement offer is fair or if you're better off going to trial. This knowledge comes from experience with medical malpractice cases.
Questions for Your Attorney
- If I win my lawsuit, do I have to report any money I get as income on my tax returns?
- Should I file a complaint with the American Medical Association or our state's medical board?
- My doctor's insurance company offered me some money after I complained about the medical treatment I received. If I take the money can I still sue my doctor?