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Your secretary tells you a potential client is on the phone with a medical negligence claim. You have represented plaintiffs in other cases, but you have not handled a medical malpractice case before. You take the call. Medical negligence is one of the most complex fields of tort law. There is a great deal of cost, risk and time involved in pursuing these cases. This article is intended toprovide a brief overview of the process of evaluating these claims todetermine if the case should be accepted. INITIAL PHONE CALL The public often misunderstands a bad result as being malpractice. Telephone screening of a potential client should include the time and place where all of the significant medical events occurred, the names of all the medical care providers involved, and a brief description of the medical procedures and the results. You should consider whether you have the expertise and funds tocontinue the screening process further. If not, you may choose toassociate with, or refer the case to, an experienced medical negligence lawyer. Most medical negligence attorneys will allow you toserve as co-counsel if you wish, affording you experience. Any possible statutes of limitation or deadlines must be carefully noted. For example, although Connecticut General Statutes Section 52-190a(b) allows a 90-day extension beyond the statute of limitations if an appropriate motion is filed in the Superior Court, that is not enough time toprepare a medical negligence case. If you agree toinvestigate the merits of the case, you may expose yourself toa legal malpractice claim if you are not ready tosue within the statute of limitations. FIRST OFFICE CONFERENCE A timely office conference should be held. Tell potential clients tobring along all medical records they have or can obtain. Before the conference, learn as much as you can about the medical condition. A chronological approach toobtaining a detailed personal and medical history should be used before getting intoa discussion of the claimed malpractice. � Assess the plaintiff. It is important that he or she present reasonably well. While liability will not be found based upon the patient’s version alone, there is a natural sympathy for medical providers whodevote their lives tohelping people. Ask about the potential plaintiff’s criminal record, employment record and alcohol and drug abuse history. � Educate the potential client about the legal process. Explain that before a claim can be made, the complete records must be obtained and a favorable opinion rendered by an expert or experts in the appropriate specialty. It typically costs between $1,500 and $5,000 for an expert review of the facts. Emphasize tothe client that, while you intend tolocate a qualified expert toreview the case, you cannot predict whether the expert will find malpractice. � Discuss the fact that a small percentage of perceived medical malpractice cases result in a lawsuit and, of those cases, many result in defense verdicts. Every client should approach the process fully informed. Unfortunately, many legitimate medical malpractice cases are not economically feasible because of a low case value. Life expectancy should be considered, especially in cases involving the elderly. Connecticut does not yet allow real punitive damages in medical malpractice cases. Often the elderly are the victims of hospital and nursing home malpractice, but are unable tosecure counsel since their short life expectancy may not allow sufficient recovery. Assess the patient’s general health, since a jury may discount or excuse acts of negligence if the patient was already very seriously or terminally ill. ASSEMBLING RECORDS AND CONDUCTING AN INTERNAL REVIEW A complete set of all of the relevant records should be acquired from all medical care providers and chronologically organized. Some nurses offer their services as consultants toreview and summarize medical records. These services may be somewhat helpful, but the attorney handling the case must ultimately have a detailed understanding of the medical history and care provided. In reviewing the records, a continued effort should be undertaken toupdate the list of all potential defendants, including corporate defendants (hospitals, professional corporations, HMOs, etc.). Identify the medical specialty of each potential defendant. That will be important in determining the medical expert consultants you will need toretain, since Connecticut law limits expert testimony against a medical provider toone trained and experienced in the same specialty or discipline. Before experts are contacted, thorough legal research should be undertaken tounderstand the issues you may face, such as the applicable standard of care, causation and damages. Appreciating the state of the law will help you todirect the course of the case as you retain and consult with your experts. RETAINING EXPERTS AND GETTING OPINIONS Finding qualified, credible medical experts can be time consuming. While using fee-charging expert-locator services may be the easiest and quickest way, it may not always produce the most qualified expert. A very careful review of the credentials of experts provided by such a service should be undertaken before retention. Find out how many times the expert has testified, since “professional experts” are not well received. Look tomedical school faculties and large metropolitan hospitals for experts. Searching for recent medical journal articles online or in a medical library will not only educate you on your claim, but will provide you with the names of the leading medical experts in the relevant field. Physicians whoare on the cutting edge in a particular area are often willing toundertake a review of your case or may be able tosuggest the name of a willing colleague. You want a physician witness whowill provide you with the untarnished truth. Ask the expert toassist you in understanding the medical procedures that were carried out and the risks of each procedure. Ask about the strengths and weaknesses of your case and what other specialists may be needed toprove the claim. There is some disagreement among medical negligence attorneys on whether a written report should be immediately secured from the expert. Connecticut Rules of Practice donot require written reports, but Federal Rule of Civil Procedure 26(a)(2)(B) does. While there is a sense of security in having a written report in your file before you sign a Certificate of Good Faith upon commencing suit, your expert might be limited in court tothe opinions written in the report. That could be a problem later, when depositions reveal other areas where the expert’s opinions are needed and appropriate. If you wish a written report, ask your expert tobe brief and general in his written opinions toallow them tobe supplemented later. Honestly evaluate if you are ready totake this lawsuit toconclusion. Consider whether it would be in the client’s best interest torefer the case toa more experienced medical malpractice attorney, since medical negligence cases virtually never settle early and are frequently tried toconclusion. If you are ready toaccept the case, explain toyour client the long, tedious process of complex litigation that will soon be embarked upon. Insist on the full cooperation of your client and a promise that, in return, you will doyour best toably represent your client’s cause. Robert Reardon is managing partner of the Reardon Law Firm PC in New London, Conn. He specializes in practice areas including medical malpractice.

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