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The plaintiff’s attorney plays a critical and varied role in our justice system. It could be said that they are the liaison between the injured party and justice itself, providing the skill, investigation and courtroom presentation necessary for the plaintiff to win their case and secure rightful compensation. In the absence of a plaintiff attorney, the injured party is forced to face the system alone. They must learn the law, procedures, and protocol relevant to their case, and ably present their grievances before a judge and jury panel. Not only is this arduous and imposing, it drastically decreases a plaintiff’s chances of winning when they do have the credit of an experienced and aggressive legal representative – whose singular professional purpose is to win their client’s case, by any available means.
Role of a Plaintiff’s Medical Malpractice Attorney
You may hear of plaintiffs and their attorneys characterized as ‘the little guy,’ taking on behemoth corporations with an enormous financial advantage in a lawsuit. This is often true. Many claims are the result of a corporation or high-powered professional’s negligence. Litigating such claims can be an enormous undertaking for both the injured party and especially their attorney. Decades of tort reform (changes to the law regarding negligence litigation) have created a degree of bias and initial skepticism toward those who file claims against healthcare providers or large corporations, because of the potential damage awards of such cases.
In a collective effort to minimize tort litigation (both rightful and frivolous), corporations and provider networks have lobbied legislators and created organizations like the American Tort Reform Association, which exclusively “advocates limited recovery through the civil justice system.” This is the climate of tort litigation into which a plaintiff and their attorney enter when they file a claim. Not only this, but the defense attorney’s case is buoyed by the full financial backing of a liability insurance company. With all defense costs advanced right out of the gate, the defense attorney assumes very little risk in taking on the case of the allegedly negligent healthcare provider or corporation.
Resources Available to Medical Malpractice Plaintiffs / Defendants
In contrast, the plaintiff attorney faces a wildly different circumstance. With no preemptive insurance policy to finance the litigation of their injury, the plaintiff must present their claim for meticulous evaluation by an attorney. The attorney must make a scrupulous appraisal of a claim, if they wholeheartedly believe in the merits of the case, they will take it on. The plaintiff does not usually have ready-to-go litigation funds, so their attorney will normally incur the costs of investigating and presenting the claim. If the plaintiff loses their case, then the attorney has lost the money they have put into the case. This shows the enormous financial risk plaintiff attorneys assume on a daily basis in the name of justice for their clients. With a contingent fee agreement, the plaintiff attorney will be paid a portion of the hard-won damages, assuming the plaintiff wins. It is, at best, an informed leap of faith, determined solely by the merits of a case, and the good judgment of the attorney.
At the outset of a medical malpractice case, perhaps the first order of business for the plaintiff attorney is obtaining the opinion of a medical expert. This is crucial in the attorney’s determinations of the merit of the case. If more than one medical professional in the field relevant to the claim believes that no negligence occurred, or that the injury was not a proximate result of any negligence, there may be no recourse for the plaintiff at all. Because attorneys are experts of law and not of medicine, they cannot evaluate a claimant’s injury without the advice of a skilled medical professional. This is a matter of course in medical malpractice cases.
However, obtaining that opinion is not as simple as soliciting a healthcare provider and petitioning them to review the case. The same medical professional who could review the case may also fear medical malpractice litigation, and for that reason, they do not want to aid an attorney who could potentially prosecute a ‘colleague’ of their field of medicine. In the Journal of Vascular Surgery, O. William Brown characterized it as “sleeping with the enemy,” and a source of unease for most medical professionals. In fact, according to Brown, many physicians outright refuse to evaluate a case to avoid this awkward situation. In addition to being medical experts, many find it difficult to wear the hat of “impartial educator” as well, with Brown describing their view of it as “an act of heresy” in the medical field. More often than not, providers will zealously review and provide opinions for defense attorneys, but construe that plaintiff attorneys are ‘batting for the other team.’ This flies in face of the fact that healthcare providers are committed to the wellness of their patients, and plaintiff attorneys are necessary to the corrective measures needed when a provider fails on that count.
Both providers and plaintiffs attorneys are, in one way or another, committed to the wellness of the archetypal patient. This illustrates the challenges a plaintiff attorney faces, just at the beginning of a malpractice case. If they cannot find a supportive medical expert, they may not be able to pursue the claim of malpractice. It does not help that they are sometimes met with outright refusal from the medical community because of the nature of their work. Brown contends that more experienced and notable healthcare providers are more likely to buck at the prospect of aiding a plaintiff attorney, suggesting that they are sometimes forced to seek out the review of less experienced or qualified healthcare providers. These biases are a detriment to the goals of the civil justice system. In response, Brown asserts that providers “must accept the responsibility of reviewing medical malpractice cases for both plaintiff and defense attorneys.”
This also raises the point that the plaintiff attorney is tasked with assessing the prowess of the medical professional from whom they seek counsel. The expert witness requirement is so critical to malpractice case that the court stands to toss a claim in the absence of one, or the attorney stands to reject a case if they cannot secure a supportive one. All the costs involved in securing an expert witness are funded by the plaintiff attorney. Not only do they bear the cost personally, but they often have a harder time finding cooperating expert witnesses who will even accept their case for review despite being compensated for it. The plaintiff attorney assumes this hardship so that the client needn’t assume any financial risk.
The plaintiff attorney stands up against a defense team dedicated to the protection of a corporation or liability company’s assets. Their primary goal is to ensure that the injured party is paid as little as possible, or ideally paid nothing at all. In this respect, the plaintiff attorney works to level the playing field for the solitary injured claimant, offering their knowledge of the law and know-how within the court in order to secure a winning verdict for the client. Their goal is to ensure the plaintiff is paid the maximum amount for the injuries they incurred, and naturally are at odds with the defense attorney, negligent provider and the liability company that ensures them.
Costs Associated with Medical Malpractice Claims
There are many costs associated with the process of discovery, whereby each side of the case discloses to one another what will be presented at a trial. This is done with depositions, written interrogatories, production of documents, requests for admission and possibly physical and mental evaluations. This phase of litigation is best likened to an investigation in which each side gets to ask questions of the opposing side, documents are acquired and sent back and forth, witnesses are interviewed, and each side can send one another statements to find out if the other side refutes or agrees with that statement. Deposing expert witnesses (asking questions under oath in an informal, non-courtroom setting) can be costly as most experts charge by the hour and do not come cheap. Documentation at all turns in critical in the legal realm, so all costs associated with documentation also fall on the plaintiff attorneys shoulders.
Plaintiff attorneys must develop a cogent trial strategy in the weeks prior to the case after discovery has concluded and all relevant information has been exchange. They may consult heavily with clients and advise them as to the strengths and weaknesses of a case; they will collaborate with the expert witnesses as well as the client to devise a trial theme, and will prepare witnesses to give testimony in the courtroom.
Resolution of Medical Malpractice Cases
Bear in mind that many malpractice cases never actually go to trial, as they are settled or successfully arbitrated in the pre-trial stage. Plaintiff attorneys play a vital role nevertheless, as they are responsible for securing a reasonable settlement for their client, of which they will be paid a preset portion for their services. In the event that a plaintiff loses their case and chooses to appeal it, their attorney may guide them through the appellate process.
Ultimately, by securing verdicts in favor of injured victims within the tort system, plaintiff attorneys are instrumental to exacting justice and policing the behavior of providers and corporations. Acting as liason between the average claimant and complex court system, plaintiff attorneys provide accessibility and advocacy for the victim at a moment of particular duress and vulnerability. Monetary damages and plaintiff verdicts are the proximate result of recklessness and negligence. Plaintiff attorneys play an indispensable role in reprimanding this behavior.