The 5 Steps I Take To Win Your Malpractice Claim

Posted By: Tony Baratta | June 17th, 2013

In the year 2012, fifty-five (55) separate people, or an average of 1 person per week, sought to hire me to bring a medical negligence claim on their behalf.  After scrutinizing the facts of each, sometimes spending thousands of dollars and many hours of time, I was forced to tell 50 of those people that I could not take their case.  Why did I decide to pursue a claim for only 1 out of every 10 people who asked me to?  Were the other 90% attempting to pursue a frivolous claim?  Absolutely not.  All of these people were harmed by a medical procedure or treatment.  In fact, in many instances, I believed the physician had in fact committed malpractice.  So, why did I not sue on those persons behalf?     

Medical malpractice cases are very expensive, if handled well, for a plaintiff’s attorney to put his client in position to win. A plaintiff’s attorney must hire an expert for every single discipline of medicine at issue in the case, as well as medical experts to prove that the medical error caused the harm.  For example, if a client’s family physician fails to diagnose an urgent condition like a blood clot in the leg that travels to the lungs and kills his patient, a family physician expert must be hired to establish what the defendant family doctor did wrong.  A specialist in lung issues (pulmonologist) or blood circulation (vascular surgeon) may be needed to establish that there was in fact a blood clot and explain how this clot can travel to the lungs and cause death.  A forensic pathologist may be needed to establish the cause of death.  If the patient had a pre-existing heart condition, a cardiologist may be needed to rule out a heart related issue as a cause of death.  To establish damages, the plaintiff’s attorney must hire an economist or vocational expert.  One expert witness alone may charge fees in excess of $10,000 to review the thousands of pages of medical records and deposition transcripts of the witnesses and defendants and more than that to testify in court.  In the above example, expert costs could easily be $50,000 up to trial and twice that through trial.   If the deceased in the above example is elderly, and has a limited lost earning potential, the costs to bring a successful litigation may be prohibitive given the amount a jury would award.  Therefore, in order to sue a physician for medical malpractice, the harms and losses must justify the great expense required.

You may be asking yourself, don’t most cases settle?  The answer is that most good cases do, but not until the case is ready for trial and all expert reports and often, testimony, has been obtained (and paid for).  Unlike in automobile accident or fall down cases (or any other type of personal injury matter), in a medical malpractice claim the defendant physician retains the right to refuse any settlement. A physician who agrees to settle is reported to the National Practitioner Data Bank which insurance carriers and potential employers, including hospitals considering to grant privileges, (but not patients), have access to.  This reporting potentially affects the physician’s insurability and employability.  So, any physician who is sued, through their insurance company hired defense counsel, makes sure the plaintiff is prepared to win.  Even if the physician has made a clear mistake that has caused substantial harm, if the plaintiff’s attorney has not proven through the litigation process that he can win, the case will not settle.  As a result, the insurance carrier for physicians hire the best litigators to defend them, spend whatever thousands upon thousands of dollars are necessary to defend the cases, including obtaining multiple experts to counter each one of plaintiff’s experts.

Statistics published by the Pennsylvania Supreme Court bear out how difficult it is for a plaintiff to succeed at trial.  Statewide, in 2012, 133 medical malpractice cases went to the jury.  106 of those cases were defense verdicts.  So 80% of the time the physician won at trial.  In Montgomery County, Pennsylvania, all 19 jury verdicts were in favor of the defense.  All 7 verdicts in Chester County were for the defense.  In Delaware County, 6 of the 8 medical malpractice cases resulted in defendants’ verdicts and in Allegheny County 9 out 10 were defense verdicts.  Even in Philadelphia County, more cases were won by the defense than the plaintiff (27 cases tried to verdict and 14 were defense verdicts).

Against this backdrop of daunting statistics, and with knowledge that any medical malpractice litigation will cost anywhere from $25,000 to several hundred thousand dollars to bring to trial, it is imperative that a plaintiff’s case be very likely to succeed on its merits and that the harms and losses suffered justify the expense.  What good to a client is it whose recovery at trial or settlement is completely eroded by the costs to obtain it?

Therefore, the following are the steps that I take to win when a physician has made a mistake:

1.         I try to understand fully, from the client, all pertinent facts and especially the harms and losses suffered.  Regardless of the type of malpractice, since medical experts will be required to support the claim, the case will be extremely expensive to litigate.  Therefore, the economic value of the harms and losses must justify that expense.  Even if malpractice has occurred and damage has resulted, if the damages are not extraordinary, it may be counter-productive to pursue a claim.

2.         There are times that I am able to understand enough about the facts, from a conversation with the potential client alone, to determine that the matter is not appropriate for further pursuit in litigation.  This initial evaluation could result in a choice to not pursue litigation because the act or omission of the physician was not below the standard of care or the damages do not justify the expense of bringing such a claim.

3.         If a potential claim survives my initial review, I will then attempt to obtain pertinent medical records. It is then at this stage that I will ask a client to sign a contingency fee agreement and medical authorizations.  No lawyer in the Commonwealth of Pennsylvania can represent a client without having a written fee agreement explaining the scope of the services and the fees being charged.  This is an ethical obligation on the part of the attorney.  Further, your medical records are private and privileged.  Your medical providers cannot share your medical information without your waiving that privilege by signing an authorization allowing me to obtain your records.  Obtaining the records allows me to confirm what you have told me and to learn additional information.  Often times, after a review of medical records, I will determine that the matter is not worthy of pursuit for similar reasons as I would in Step 2.

4.         If, after a review of medical records, I believe that your matter is worthy of further pursuit, I will solicit opinions by medical professionals in the area, in a similar specialty as the medical care in questions, to evaluate the merits of the claim.  These reviewing experts often will not be the ultimate experts I hire to testify at trial.  But these reviewing experts help me determine whether or not the claim is a viable one and to establish the particular rules the physician violated that caused the harms and losses.

5.         If the reviewing experts determine that there has been a violation of the standard of care that has caused substantial damage, I will then hire those experts who will act as trial experts.  I will often obtain written reports from these trial experts to be used to file my complaint and pursue discovery against the Defendants.  I will keep these experts apprised of the discovery obtained as the case moves toward trial.  Then, at the appropriate time before trial, these experts will provide me final written reports which will act as an outline for what they will testify about at the time of trial.

This is the process that I follow to ensure success on behalf of my clients.  The litigation process is long, arduous and expensive.  When I tell a client that I am pursuing litigation on their behalf, the client expects me to win.  As a result, I spend a great deal of time, money and whatever resource is available to me to determine whether or not your case is one that I can win.  While this process is ongoing, I bear the burden of all expense and you pay nothing.  In the end, if I choose to not pursue your claim, I will give you every ounce of the analysis produced by the time and money spent.  If I choose to pursue your claim, you will know that no stone will remain unturned and no proper expense will go unexpended in our search for victory.

If you have an issue you would like to discuss with me please feel free to contact me at 215-914-2222 or tony@barattarussell.com.

About the Author

Tony Baratta is a trial attorney in Huntingdon Valley, PA who represents clients who have been seriously injured. Tony is the founding partner of Baratta, Russell, & Baratta and a member of the Pennsylvania Brain Injury Association (BPIA). Tony is on the board for the Philadelphia VIP, member of the Million Dollar Advocates Forum for trial attorneys, voted one of Philadelphia’s Super Lawyers for the past 13 years and 2018 recipient of the First Judicial District Pro Bono Award for the Civil Trial Division.

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