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6 Steps To Hiring A Medical Malpractice Attorney

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Every year, more than 250,000 people in the United States die as a result of medical negligence. Many thousands more are injured as a result of delayed or missed diagnoses, prescription drug mistakes, and surgical or anesthesia errors. If you were injured during or as a result of a medical treatment and believe that you have a claim, a medical malpractice attorney can help you seek compensation. Here's what you need to do:

  • Gather your records.

  • Find a medical malpractice attorney.

  • Check the statute of limitations. (It can be complicated.)

  • Determine how much the attorney will charge.

  • Prepare questions for the consultation, and get answers.

  • Decide what to do if an attorney won't take your case.

Gather your records.

If you received substandard medical care, you should gather all documentation available to you. Here are a few documents to gather before you consult an attorney or file a lawsuit.

  • Contact the physician or health care facility to get copies of your medical records.

  • Financial records. Make sure you have copies of all expenses related to your medical care. Bills, bank statements, and insurance documents may all be useful in your case.

Having documentation can save your attorney time gathering this information and can help them decide if your case is one they can pursue for you.

Find a qualified medical malpractice attorney.

If you believe you’ve received negligent medical care, you need an attorney. Begin by creating a short list of local medical malpractice lawyers who represent injury victims. Then, narrow down the selection based on their qualifications and expertise.

  • Look at the lawyer's website for details about their malpractice experience and knowledge.

  • Check whether the attorney is a member in good standing of local, state, and national bar associations.

  • Ask or determine what percentage of the lawyer's caseload is devoted to medical malpractice, what portion of cases goes to trial versus settling, and how much of the case work is delegated to support staff.

  • Verify that the attorney works on a contingency fee basis and absorbs up-front expenses.

Medical malpractice is a broad practice area, so it's important to hire a professional with relevant experience. Attorneys may focus on birth injuries, delayed diagnoses, faulty medical devices, medication errors, or slow-moving medical conditions. Relevant legal experience shows that the attorney has a strong strategy and is familiar with the intricacies of that particular type of malpractice.

Check the statute of limitations.

The statute of limitations determines how long you have to file a lawsuit. In medical malpractice cases, it can be incredibly complicated to nail down. Deadlines for medical malpractice lawsuits differ in each state and can be dependent either on when the injury occurred or was first discovered. The statutes of limitations in three of the nation's most populous states show how these laws vary:

  • California plaintiffs have one year from discovering an injury or three years from the injury date.

  • New York claims must be filed within 30 months of an injury-causing event. But, there are exceptions. Sometimes this period is prolonged due to issues with continuous treatment and sometimes it is shortened. This is why it’s critical to consult a qualified medical malpractice attorney to ensure you don’t miss important deadlines.

  • Texas plaintiffs have two years to file a post-injury lawsuit.

There are several exceptions, including continuing treatment situations, discovery after the statute tolls, and a 10-year maximum limit. For minors, the statute of limitations may only begin once the person reaches majority age.

Ask about the attorney's payment practices.

Medical malpractice lawyers typically represent clients on a contingency basis, which means that they only get paid if the plaintiff receives a settlement. There’s not necessarily a standard amount that goes to your attorney. This can vary depending on the firm's policies and state-level fee caps. For example, New York cases are often paid using a sliding-fee scale. Attorneys may also pay litigation expenses up front, such as filing fees and investigation costs, before they collect their fees from the settlement.

For example, a medical malpractice attorney pursues a case for a client and has a 33% contingency fee. After recovering $200,000 for the client, the lawyer takes $10,000 for fees and expenses, which leaves $190,000. Then, the contingency fee of $62,700 or 33% is deducted from the remaining amount, and a total of $127,300 is distributed to the plaintiff.

Prepare questions for the consultation, and get answers.

Whether in person or over the phone, it's in your best interest to speak to multiple attorneys before making a hiring decision. Initial consultations allow attorneys to evaluate your claim, and they give you a chance to compare candidates. Prepare a comprehensive list of questions, and go through them one by one during your meeting.

Case History

Medical malpractice is a complex area, and not every personal injury attorney is capable of successfully litigating these claims. To give yourself the best chance for success, hire an experienced professional with a long case history and a strong track record.

  • What percentage of your practice is devoted to medical malpractice?

  • How many cases is your firm currently handling, and what portion of them are malpractice?

  • How many medical malpractice cases have you handled in the past three years?

  • How much experience do you have with my type of case, e.g. misdiagnoses, medication errors, or surgical mistakes?

Professional Qualifications

In addition to bar association memberships and professional affiliations, top-performing medical malpractice attorneys often have awards, board certifications, and other valuable credentials. If an attorney believes it likely that your case will go to trial, ask them questions about their qualifications, past verdicts, and trial experience, including their stance on out-of-court settlements.

Evaluating Your Case

A good portion of your initial consultation will focus on the facts of your case. The attorney will ask for a timeline of events, evidence, and other relevant details. You will also have an opportunity to ask questions about the strengths and weaknesses of your claim, the types of damages you can recover, and what you can expect during the process.

  • What kinds of expert witnesses would you call upon for my case?

  • What factors could be detrimental to my medical malpractice case?

  • How long will it take to resolve my claim?

  • What types of damages can I recover?

What to Expect From the Law Firm

Every law firm is different. Some attorneys work closely with their clients while others use paralegals or case managers for most day-to-day activities. Asking the right questions can help you determine the attorney's work style and what type of service you can expect.

  • If I hire your firm, will I communicate primarily with my attorney, a paralegal, or other support staff?

  • How often will you provide updates?

  • What resources does the firm have to handle my case?

  • May I speak to two recent clients?

Decide what to do if an attorney won't take your case.

After consulting an attorney, you might be told that you don't have a case or that your case will be too difficult to prove in court. According to 20 years of data collected by the National Institutes of Health, the success rate of malpractice lawsuits ranges from 10-50% depending on the strength of the plaintiff's evidence. High litigation costs and factual details prevent many potential claims from ever making it to court. Here are a few of the most common reasons why attorneys may decline your case:

  • The statute of limitations has expired.

  • The anticipated settlement isn't enough to justify the time and effort required.

  • Factual issues make it difficult to prove your case.

Consulting an experienced medical malpractice attorney is the best way to determine if you have a valid case, especially if you're dealing with pushy insurance companies that want you to waive your right to sue. If you still aren't sure, don't hesitate to ask for a second opinion. An attorney can explain all of your options and help you take the next step.


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John E. Richmond Profile Picture

John E. RichmondReviewer

One of New York State's top personal injury attorneys, John E. Richmond understands that clients come first. He has over a decade of experience representing plaintiffs against negligent corporations and big insurance companies. He is the co-founder of Richmand/Vona and has been selected to the New York Super Lawyers list, saved for the top 5% of lawyers.