Why is it so hard in California to find a lawyer to take a medical malpractice case? By Rene’ Turner Sample
This article is intended to provide insight into the nature and obstacles in medical malpractice litigation so you can improve your chances of finding a lawyer to take your case or at the very least understand the limitations of justice here in California.
When wrongful conduct of someone other than a health care provider injures a member of our community, pursuant to California law the wrong doer is required to fully compensate the injured person for all of the harms and losses they caused. In order to provide a justice system whereby injured people who cannot afford to pay a lawyer by the hourly, California law provides for contingency fee arrangements, whereby an injured person does not have to pay the attorney unless they make a recovery. With a contingency fee agreement, the attorney advances the costs of the lawsuit and works on the case, only recovering their advanced costs and earning a fee (usually 1/3 or 40%) if there is recovery for the loss.
When someone is injured by the wrongful conduct of a health care provider in California, there are caps on the amount of recovery the injured person can receive and there are caps as low as 15% on the allowable contingency fee. The caps on the recovery and contingency fee, along with the high cost of litigating a medical malpractice case leads most lawyers to not accept any of these cases. Of the small percentage of lawyers who will consider taking such a case, they only accept those which seem to them to have the potential to result in a large enough recovery to justify the inescapable cost and time associated with a medical malpractice case. And even when an injured person can find a lawyer to accept their case, it is estimated that 60% of medical malpractice cases are lost at trial here in California. It is also estimated that more than 75% of people who believe they have been injured by the wrongful conduct of a medical malpractice lawyer, cannot find a lawyer to take their case, and many of those cannot even find a lawyer to tell them why the case is not being accepted. Understanding the intake process for a lawyer’s office and the basic limitations of medical malpractice litigation may not guarantee you will find a lawyer, but may make the process less frustrating.
Understanding the intake process for most personal injury law firms.
Most offices have an assistant take down the basic facts and then the lawyer will decide whether to follow up and talk with the potential client or to just send a rejection letter. If the lawyer has not talked to the potential client, most lawyers will send a rejection letter, not commenting on the facts of the case, but simply setting forth a general discussion of the potential statute of limitations, or the deadlines by which certain things must be done in the case or the right to pursue it may forever be lost.
Medical Malpractice cases have short time deadlines.
Most personal injury cases in California have a two year statute of limitations, meaning you have to formally file a legal document in the proper court within 2 years of the wrongful event. Medical Malpractice cases are only 1 year and if the facility was a government owned facility, then it is only 6 months. There are some rules regarding delayed discovery which can extend the deadline up to 3 years, but those cases require a close look at the facts of the case.
If you are contacting a lawyer 6 months after the wrongful conduct when a government entity was involved or more than 1 year after if it was not a governmental entity, many lawyers will not consider the case unless an exception to the strict deadlines jump out from the facts. If you are close to, but not having gone past those deadlines, many lawyers will still not consider the case because they will then not have enough time to thoroughly investigate before the deadline approaches.
Once a lawyer reviews your records they usually feel compelled to provide an opinion regarding the applicable statute of limitations, which means if there is a delay between when the harm occurred and when you are calling the lawyer, many lawyers will not even look at your records because unless they are interested in taking the case they do not want to have to determine the applicable statute of limitations or comment upon whether or not they think you have a case. That is why so many lawyers just send out a standard letter saying they are not accepting your case, but specifically note they are not commenting on the merits of the case and then providing a brief explanation of the statute of limitations.
Medical Malpractice Cases are determined by the applicable “standard of care,” which usually requires an evaluation by a medical professional.
In California, most wrongful conduct is evaluated by what a reasonable person would do under similar circumstances. In medical malpractice cases, such an evaluation requires a medical professional of similar training as the professional you are considering suing to review the records and provide an opinion as to whether the standard of care was violated. The vast majority of medical professionals are unwilling to formally provide an opinion as to the standard of care of another medical professional. In my experience it is common for doctors providing second opinions to a patient to criticize the work of the previous doctor, thereby sending many potential medical malpractice plaintiffs seeking representation. In my experience, those second opinion doctors who so freely criticized the prior doctor when they were seeing the patient, are seldom willing to get involved and go on the record to formally criticize another medical professional.
If you do not have a treating doctor who is willing to go on the record to confirm the standard of care has been violated, you will have to find an attorney who either through experience or instinct believes it has been violated and is willing to spend the money to hire their own expert to review the records. The other alternative is for you to pay an expert to review the file at your own expense. Although it may be difficult to find the right expert to review the case, if you can, the expert’s report may provide a potential lawyer the information which they need to take your case. Even if the expert does not find the standard of care was violated, that report may provide the family with the answers it needs to find some closure.
Did the wrongful conduct cause additional harms and losses?
We are at our weakest and usually most vulnerable when seeking care from a health care professional, so usually most medical malpractice litigation focuses on whether the harms were caused by the provider’s mistake or whether it was just a risk of the condition or procedure. The issue is whether the provider’s conduct was wrongful and whether or not injuries occurred because of that wrongful conduct which wouldn’t have otherwise occurred.
Whether or not injuries were caused by the wrongful conduct is another area where expert testimony is required. Your treating physicians are often a bit more willing to offer opinions on what caused an injury, but again are not often willing to comment on whether that cause amounted to medical malpractice.
Understanding the costs of litigation.
We all understand that we are not going to file a small claims action when a mechanic cheats us out of $20. We are not willing to take a ½ day off of work to go to small claims court. If the mechanic cheated us out of $200 we may be willing, but if in order to win we need to pay another mechanic $200 to write us a report, it isn’t worth it. It is these same considerations which apply to medical malpractice cases. The lawyer will usually make less than 25% on a medical malpractice case, and often be required to spend in excess of $25,000 on experts and depositions. A lawyer will not take a case unless they believe they will be able to recover their costs, earn a decent fee and be able to make a difference in the client’s life. If the potential value of a case, if won, is worth $50,000, but will take $25,000 just to do the investigation, it may not be worth the risk to pursue.
What makes some cases more expensive to litigate than others?
Experts and investigation are expensive. Medical records seldom on their face explain the wrongdoing. Often you have to sue many doctors and facilities to protect your right to sue the correct provider. It takes experts to review the records and then a significant amount of time to take the depositions of all involved. The more complicated the facts, usually the more expensive the litigation. If you have seen many doctors in the past or since the injury, that usually results in many depositions, which again increase the costs of pursuing the claim.
What are the out of pocket losses?
In California the emotional pain and suffering caused by the wrongful conduct of a health care provider is capped at $250,000, and are otherwise limited to recovery for your out of pocket losses such as medical bills not covered by insurance, lost wages and lost household services.
Why does the $250,000 cap make it so hard to find a lawyer?
The $250,000 caps the insurance company’s exposure. In non medical malpractice cases, both sides want to avoid the risk of trial, so most of those cases reach an informal settlement agreement. With the cap, the insurance company has little risk. Doctor’s also often have a clause in their insurance contract requiring the insurance company to obtain the doctor’s consent before settlement. The insurance company pays for the doctor’s lawyers and all the costs associated with the litigation, so it is not uncommon for doctors to insist on a trial. Doctors are all obviously well educated and they want their chance to explain to the jury how they did the best they could and again as many as 60% of medical malpractice cases are lost at trial.
How does the cap on the contingency fee make it hard to find a lawyer?
Lawyers are in a business. A business which helps people obtain justice, but a business nonetheless. Lawyers risk their capital and time on cases, and they only take a case where they believe the potential compensation outweighs the risks associated with the case. Most every other type of injury case in California has a contingency fee of 1/3-40%, so few lawyers are willing to incur the time and risk associated with medical malpractice cases for ½ that fee.
How to lessen the stress of finding a medical malpractice lawyer?
There are many ways to find a lawyer, including internet searches and contacting attorney associations, but here are a few tips to make the process easier.
1. Act Fast. As soon as you suspect a medical provider did something wrong which caused you harm, contact a lawyer. Most Bar Associations have referral systems that will arrange for a free ½ hour consult, if for nothing else, so you can make sure you understand the applicable statute of limitations.
2. Gather your records. Ask your providers for complete copies of your medical records. Make sure to ask for “all of the records” in writing, otherwise you will just be given a partial set. If you were hospitalized, the records may be more extensive and you may want to be more selective in your request.
3. Gather your witnesses. If a medical provider has told you they believe it was medical malpractice, see if they would be willing to talk to a lawyer.
4. Prepare a brief written summary of what happened and why you think wrongful conduct was the reason for your harm. Include the following:
a. Dates of all visits or medical procedures involved.
b. Identity of all medical providers involved.
c. Date you suspected something was wrong. If it has been longer than 4 months since you first suspected something was wrong, why you have waited to try contacting a lawyer.
d. Why do you suspect something was wrong. If someone told you, particularly another doctor, what did they say and when did they say it.
e. What injuries do you believe were caused by the wrongful conduct. Briefly provide basis for amount. For example “I earned $35,000 per year and cannot go back to work.” “I have to have two more surgeries to repair.”
f. If you have had any other lawyers review the case, who you contacted and what did they say about why they did not accept the case.
g. Whether you have copies of records, and if so which records.
h. Whether any doctors have agreed to talk to a lawyer for you.
5. Ask friends for a referral to a lawyer. A lawyer is more willing to get on the phone with someone who has been referred to them by someone they know. Even if the lawyer doesn’t handle medical malpractice cases they may be able to point you in the right direction.
6. Don’t give up. Remember it is the lawyer who, based on their experience and/or instinct, believes you may have a case which will take your case or at least take your call. I have at times picked up the phone simply because it was a case similar to one I just handled. So keep trying. This is one of the reasons I think brief written summaries are useful. Summaries can be sent to multiple lawyers, and lawyers can forward them to lawyers they know, all of which increases the likelihood of you finding the lawyer who has had an experience which makes he or she believe they can help.
7. File a claim with the Medical Board. As long as you have your records and summary, file a claim with the Medical Board. Even if you do not find a lawyer, you will know that your observations and concerns were reviewed and potentially investigated.