Searching for an attorney brings new challenges. In my case, some attorneys would not consider reviewing the case unless an autopsy had been performed .Who would think you have to cut up a loved one to be able to seek justice. This was not even an option in my case; my mother had been buried long before I even thought about a medical malpractice suit.
All attorneys before committing themselves will want to review the medical records. You will have to provide these records yourself and be prepared to pay a fee for their assessment. One of the elements to taking a malpractice case is that there has to be permanent injuries. The attorney will then decide if he or she wants to try the case. During your initial consultation, ask for statistics, how many cases he has successfully brought to trial, how many he has settled out of court, how many cases he has lost. This will also give you peace of mind in determining if this attorney is right for you and your case.
Some attorneys will want to take the case only on a retainer basis. Some may offer to take the case on a contingency basis. There are pros and cons either way. With a contingency, you may not have any say so with decisions that are being made on your behalf. The attorney is paying for the case out of his or her pocket and has a tendency to run it as they choose. In addition, the benefit is that if you lose your case, you will not have to pay for the cost. With a retainer basis, you may have more control with decision making because you are paying for that right. The down side is the price of a malpractice suit is very expensive and can run in the tens of thousands of dollars just in cost alone. What it all boils down to is the merit of your case, your attorney's willingness to fight for you, your own willingness to fight for yourself to obtain accountability and the determination made by the jury.
Going through litigation
Malpractice litigation is what I frequently refer to as the "second living death". I believe it has all the components of the five stages of death; denial, anger, depression, bargaining and acceptance. As my life was reeling out of control, trying desperately to understand my mother's death; I would embark on yet another journey that has lasted 3 years 6 months to date and still is void of an ending.
The Court System
May I make a few suggestions in your quest for justice? This lesson I learned the hard way being a novice to the judicial system. Attorneys do not try your case on emotions. They will not be sympathetic to your pain or loss. They run their case on facts alone. Your case is only one of many that they defend on any given day. I took this very personal and did not understand why my attorney was not as outraged as I had become, this caused a very strained relationship from the beginning almost to the point my attorney wanted to divorce himself from the case. I was fighting the medical establishment, the court system and now my own attorney. Life was almost unbearable. As I got my emotions in check probably, just in the nick of time, my attorney was willing to proceed with my case. I now feel he understands my outrage and I myself have a newfound respect for him knowing he is doing his job.
I will try to walk you through the many steps involved as your introduction to the justice system begins. I can only give you my own personal experience; as I am not an attorney nor associated with the legal system in any way. First, the complaint is filed which takes 90-days from the time you file to be assigned to a judge. The defendant has another 30-days to answer the complaint so already four months have gone by before any actions start. A case management hearing is then scheduled which can take up to six months or longer. In the meantime, both attorneys will start the dance of the legal system filing motions, demurrers, ex parte applications, briefs, etc., your case may go to the legal research department many times over the course of your suit. Both attorneys have to prove merit for or against the complaint. The judge will go by the law to determine if the case continues or if it will be dismissed. The judge may order you to mediation several times during the course of the case. This usually ends without resolution. Your victories will be few so treasure the small ones, as the war will continue. Depositions will be taken as well as other discoveries will be exchanged between attorneys. When the attorneys are satisfied that all information has been obtained, the judge will set a trial date. This date is subject to change many times. The opposition will ask for a continuance and will usually receive it; this is a typical stall tactic. In my case, I have had trial scheduled and rescheduled seven times in 11 months. When you think you are getting close to trial, you will only find more delays. Several of the Superior Courts in California have their case information online. This will give you the opportunity to follow your case without having to call your attorney. I found this to be very helpful to be involved in the process. One thing I can tell you, this is a long drawn out ordeal; you will have to develop tough skin, also patience is vital. What ever happens, do not give up; I have learned one person can make a difference.
The Jury
Juries are unpredictable. Many attorneys probably welcome the possibility of an out of court settlement just for that very reason. Juries tend to be sympathetic toward the doctor. I remember sitting on a malpractice case long ago and one of the jurors made a comment about not wrecking a doctor's reputation. We as victims did not wreck any reputation for a doctor; they put themselves in that position. Jurors are responsible for deciding if the basic standard of medical care was met. That is their main priority. Somehow, I think they are caught up in the testimony, they associate their own good experiences with the profession, some jurors cannot be convinced that unethical doctors exist and some really do not understand the judge's instructions. I wish people who have not been through this experience could relate better to what destruction we go through to obtain justice. Most people think a malpractice suit is just about money, it is a far cry from that. However, it is the only option available at this time, until someone comes up with a new idea to hold doctors accountable. Jurors are not aware that these cases have already been tried in the courtroom for as long as up to five years before the cases get to them. They are also not aware if the doctor has had multiple suits already tried in the judicial system. In a civil suit, it is a preponderance of the evidence, which means that nine jurors can decide your fate. Maybe you are asking yourself if it is all worth the trouble. My answer is yes. I will defend my mother and myself for the justice I believe is owed to us. Update Settlement Agreement
The end of July another mediation hearing was scheduled with a netural judge, the defendant's insurance carrier and his attorney, once again, we left without resolve. It was beginning to look like we would have our day in court. A face-to-face meeting with the defendant and a longing to finally hear the truth and an explanation regarding our mother's death. The trial judge ordered our case to court on August 21, 2006 at 9:30 a.m. it was a welcomed relief. On August 16, 2006, we received a telephone call from our attorney; he wanted to see us in his office right away. The insurance company had made a 998 offer, which held more legal complications. A 998 offer is a set amount that if it is not excepted and we proceed to trial or if the jury awards $1.00 less than the offer made; we would have to cover all of the attorney fees for the defendant. At the time of the offer, the defendants attorney fee's were $30,000. With trial cost and expert witness fees we could be looking over $100,000. in paying for the defendant's cost. Our attorney advised us to accept the offer. I had become conditioned to disappointment, numb to the world around me and exhausted from fighting a fight that sometimes cannot be won. I bravely stood up against the system, fought hard for justice for my mother, and am proud of my accomplishments. Unfortunately,I could not stop this doctor, perhaps, I slowed him down just a little and sometimes that is all one can do. He still was reported to the California State Medical Board who will review all the court records and make their own determination. In addition, it is one more malpractice case with judgment against his record.
This doctor claims no wrongdoing and does not feel responsible for my mother's death. A doctor without a conscious. There is no confidentially clause in regards to the settlement agreement. I have decided to take the high road by not exposing his name, but I will watch as his career continues to unravel. A check from an insurance company is not a magic wand. It will not take your pain away, give you comfort, renew you faith in doctors or in the justice system and most of all it will not bring your loved one back. Your life has been changed forever no amount of money will change it back to life before medical malpractice. However, the process will make you smarter. You will be more cautious regarding choosing a doctor, you will be happy to be involved with decision making regarding your health care and the health of loved ones, and you will be grateful for all the right decisions made by competent, compassionate, caring, doctors. Maybe the next time you feel like complaining about waiting too long in the doctor's office you could just say "Thank you for taking such good care of me". Furthermore, remember an unethical doctor's office may be just a door away.
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