Screening potential medical malpractice claims: from the frivolous to the egregious

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Peter Bergé JD PA has a practice concentrated in medical malpractice. He is a licensed physician assistant. Mr. Bergé also represents clients in other areas of personal injury, as well as workers' compensation and general litigation. He holds a Master's degree in Public Administration, and also lectures on medicine, law and medicolegal topics to local and national groups.

Here is what you will learn:

• How many calls does your firm get per month from potential plaintiffs?
• Has there been any increase in calls during this current shaky economy?
• What percentages of calls turn into cases you accept?
• What is the most common reason people provide for contacting your firm about a potential case? (What motivates them to call about a case?) What is the second most common reason?
• Let’s say the plaintiff tells you after the injury the physician became unavailable or did not explain what happened. How does that influence the readiness of the plaintiff to contact a lawyer?
• How are the traditional elements of a cause of action for negligence (duty, breach, injury, causation. . .) applied to medical malpractice claims?
• How do you distinguish between injuries and damages?
• When you are first looking at a potential medical malpractice case, do you have a “triage” system for eliminate problem cases from the start?
• After your initial assessment, what framework do you follow when evaluating a potential medical malpractice claim?
• How do you establish the standard of care for the purpose of case review?
• How do you evaluate a case involving complex standards of care?
• One of the criticisms of the current jury system is that people who make up a jury are laypeople, not a jury of the doctor’s peers. Can jurors understand the nuances of complex cases, and if not, how does that affect case screening?
• Some plaintiff firms take cases with the assumption that any case may end up in the courtroom rather than settling. How does that assumption affect screening cases?
• How do you evaluate the medical literature as a way to establish the standard of care?
• Are there cases where there is a clear deviation followed by a severe injury but you cannot prove causation?
• What are the client characteristics that should be taken into account when you are screening a case?
• How much credence do you give to rejections of a potential claim by other firms?
• Let’s suppose the plaintiff describes what happened, but the medical records give a very different story. What do you do then?
• Let’s assume you strongly suspect medical records were falsified or drafted in a misleading way. How does that affect the decision to take a case?
• How do sloppy, vague, or poorly written medical records influence a case screening?
• What are the pitfalls of accepting a case when the statute of limitations is fast approaching?
• Suppose a patient suffers a perforation during a colonoscopy. There is a delay in recognizing the perforation and the patient develops peritonitis. Would that be a case worth looking into?
• What advice would you offer to legal nurse consultants who assist attorneys in screening medical malpractice cases for merit?

From "Damages and Awards in Medical Malpractice Cases" by Pat Iyer on medleague.com.

One model of screening the medical malpractice case suggests that the attorney should evaluate the four components of liability in their order: duty of the healthcare practitioner to the patient, breach of this duty, proximate causation of damages and damages. A more useful model is to first evaluate damages, before even addressing duty, breach of duty and causation issues.

Given the estimated $25,000-$100,000 cost of bringing a medical malpractice case through five or more years of litigation before trial, it is essential to understand the damages alleged by the plaintiff. The severity and permanency of the injuries must both be considered. Some of the questions to ask when the phone call comes in as described at the beginning of this article include: What happened to your mother? Who said she was injured? How old is your mother? Is she working? Did she lose work as a result of the injury? Have the injuries been permanent? What is her current condition? What was her health before the incident?

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