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Why Is It Taking So Long For That Medical Malpractice Attorney To Decide If He's Taking My Case?

Posted by Andrew J. Barovick | Jul 22, 2018 | 0 Comments

There are many steps involved in the decision.

Yes, I can get a feel for a case when a potential client comes to my office to tell me about his or her negative experience with a healthcare provider.  But moving forward with a medical malpractice case takes more than a feeling.  

First, I look at your records.

Some potential clients bring some, or all of the key medical records that document the care that may have brought about their injuries. Most do not. So the first order of business, after having a potential client sign a retainer agreement, is to have him or her sign documents, usually referred to as "authorizations," that allow me to send for their medical records, so that I can review them. This is rarely a quick process. Doctors and hospitals can become overwhelmed with records requests, and responding to them is not their first priority.  Individual doctors (or podiatrists, chiropractors and dentists) may feel unnerved by a records request from a lawyer, and will do their best to ignore it, or to delay responding to it. It can take weeks, and even months, to get hold of the records necessary to evaluate a case. And often, simply obtaining the records requires several phone calls and letters following up on my office's original request. 

Once I have the records, I must go through them and make sense of them. Naturally, the more records there are to review, the longer it takes. A potential client may think, "it was just one visit to that cardiologist who missed my impending heart attack. How could there be tons of other records?" The short answer is, because I have to see not only what mistake(s) the physician made--but how you were affected by it. So if you spent months in the hospital as a result of the medical malpractice, that factors into whether or not there is a case worth bringing. 

Second, I have to make sure that your claim is medically supportable.

Nobody benefits from the launching of a lawsuit that will not survive close scrutiny in court. It is a waste of time and money, for lawyers and their clients. That is why, in New York State, a lawyer bringing a medical malpractice case must attach, to the summons and complaint, a Certificate Of Merit. In order to do so, I have to consult with a physician who knows the relevant area of law, to see if there is merit to the case. Another way of putting it is, the case cannot be frivolous. Often, that physician will want to review all of the records that I reviewed.  This review process takes time. And it can take even more time if there are relatively few practitioners of the medical specialty involved, because in a small professional community, a physician will often be reluctant to criticize the work of a colleague.

Third, I have to make sure that it makes economic sense to bring a lawsuit.

One of the things I like least about my job is having to tell potential clients who have suffered a significant loss as a result of medical malpractice that it does not make sense to bring a lawsuit. This usually involves the damages aspect of a case.  Generally speaking, "damages" are money awards that the wrongdoer in a medical malpractice suit pays when the victim wins a trial, or settles a suit before trial. They are meant to compensate the victim for particular losses, such as: (a) pain and suffering (known as non-economic damages); (b) loss of earnings; and (c) past and future medical care.  There are times when a potential client suffers a clear cut case of medical malpractice, but the damages aspect of the case is too limited to warrant the time, mental energy and costs of bringing a lawsuit. Such victims are often better served by filing a complaint with the Department of Health. One of the most egregious examples of the unfairness of our damages laws is the minimal value accorded to wrongful death cases involving elderly, retired people. But that topic will have to await a separate blog post.

 In summary, it takes time.

It is frustrating to have to wait. But your lawyer has to take important steps that take time to accomplish, before he can properly evaluate your case. 

About the Author

Andrew J. Barovick

Mr. Barovick is a graduate of Columbia College and Cardozo School of Law. He began his legal career at the Queens District Attorney’s Office, where he tried over 20 felonies to verdict, and argued an equal number of appeals before the Appellate Division, Second Department, the New York Court of Appeals and the United States Court of Appeals for the Second Circuit.


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