Monday, March 31, 2008

Is Your Lawyer an SOB?

An acquaintance told me recently that he hired a particular attorney because he heard the attorney was an "SOB." That struck me as a rather odd requirement and got me to thinking, why would you want an SOB for an attorney?

If you were hiring a plumber would you want him to be an SOB?
If you were hiring an accountant would you want him to be an SOB?
Would you want an SOB for a son-in-law or a spouse? How about for a doctor?

What is an SOB? I picture someone who is rude, undependable, dishonest, and generally unlikeable. Why would you look for this in someone who is going to handle your money and act as your agent?

I think this is something we can rightfully blame on TV. We see rude, unethical, attorneys on TV who get great results for their clients. They are disrespectful to the judge and the opposing attorneys. Despite this, they always win and the client loves them. However, this is not the reality.

I think it is important to understand what attorneys do for their clients, particularly in a medical malpractice case. At the end of the day, almost all medical malpractice cases are settled before going to trial. Prior to that, your attorney must work closely with the attorney representing the doctor or hospital. They must work together to obtain all the medical records, to take depositions of all the witnesses, to schedule hearings, and to generally get the case ready for trial. If this process is done by someone who is rude, dishonest, undependable and unlikeable, it is likely to be longer, more expensive, and less productive. Why would the opposing attorney want to cooperate with your SOB lawyer? If your lawyer acts like an SOB, the opposing attorney will likely assume a similar style and before long the entire process has degenerated into a petty school yard fight. This might make for good TV, but it doesn't help the client in the real world.

What your attorney should be doing is building a case that sends a message to the other side that, if this case goes to trial, you will win. He should also be contributing to an atmosphere that allows for open communication between both sides about whether the case should be settled. And finally, he should be able to get the other side to pay fair value for the case.

Ask your self this question; If you were going to pay someone money for something, a car, a mowed lawn, anything, would you rather pay that money to someone you liked or disliked? Have you ever been in a situation where you would rather just not complete the transaction than have to deal with the other person anymore. Have you ever said, "I like the food at that restaurant, but the waiter was such a jerk, I'm never giving them any of my money again."

Well, I don't think it is any different when it comes to settling malpractice cases. It is going to be harder to get the other side to pay fair value for your case if they hate your lawyer, and by extension hate you. There comes a point when they would rather walk away from the transaction than put any money in the SOB lawyer's pocket.

I am not saying there are not good lawyers who are SOB's. I'm saying that if they are good lawyers who get good results for their clients, it is in spite of the fact they are SOB's and not because of it.

Monday, March 17, 2008

Large Firm v. Small Firm

I receive many phone calls from potential clients medical malpractice clients who ask about the size of my firm. It seems that many people have an idea in their head about the size of the firm they would like representing them. I don't know if this pre-conceived idea comes from prior experience or from stereo-types used on popular TV shows.

Whatever the reason, people seem to believe that the larger the firm, the better it must be. I would suggest that this is not the best way to select an attorney. Would you pick a doctor simply based on the number of other doctors that work in the same office? Or would you select a doctor that has a good reputation and good "bed-side" manner, regardless of how many other doctor's names on are on the door?

As with doctors, it doesn't matter how many attorney's names are on the letterhead if your attorney never has time to meet with you and doesn't return your phone calls. What I often hear from clients who come to me after first testing the waters of the big firm is that they rarely even got to speak with their attorney. Any communications were filtered through the attorney's paralegal or secretary.

I believe this is the case for a couple of reasons. First, lawyers are human. They get caught up in the "big firm" atmosphere and eventually convince themselves that they don't need to deal directly with their clients. They're too important for that. Second, they likely have too many clients. The ability of a big firm lawyer to advance in the firm and achieve partnership status is determined by his/her ability to bring in clients. The result is an attorney with an extensive list of clients, few of whom get the attention they need or reserve.

If your big firm attorney is "in a deposition" or "in a conference" every time you try and call him, I would start to suspect something. He's either too important to talk to you or too busy to handle your case. Either way, you suffer.

However, the atmosphere at a smaller firm can, and should be completely different. At my firm, for example, we specifically limit the number of cases we take so that we can offer personalized service to all of our clients. If you call, I will speak with you. If you want to have a meeting, we will arrange it. I have met with many of my clients in their own homes when it is most convenient for them.

Also, because my smaller firm limits the number of cases we take, we are able to spend whatever time and expense is necessary to prosecute the case. I can set aside an afternoon to do nothing but sit and think about your case and how to prove it to a jury because I have made a conscious decision to not overwhelm my office with too many cases. No attorney is doing you a favor if they take your case but do a lousy job working on it.

Another significant difference between large firms and smaller firms, especially when it comes to medical malpractice, is that larger firms cannot afford to take on claims with lesser damages. Because of the massive overhead that goes along with operating a larger firm, they cannot justify the time and expense of representing clients with damages that may not be worth millions of dollars. Smaller firms, on the other hand, do not have as many mouths to feed.

Medical malpractice takes many forms and results in varying degrees of injury. You shouldn't be denied the right to recover simply because a big firm doesn't think you were hurt bad enough. Many smaller firms are able to offer you the representation you need, regardless of how bad your injury is.

So, if you've never actually met your big firm attorney, or you are tired of never getting past the secretary when you have questions about your case, then maybe its time to give a smaller, more personalized firm a chance.

Wednesday, February 13, 2008

Why won't the doctor give me my records?

I got a call from a man the other day who was very upset because he wanted a copy of his medical records and the staff at his physician's office wouldn't turn them over. I hear this all the time and it makes me very angry.

Doctors and hospitals are required by law to maintain copies of medical records and they are further required by law to produce copies of those records to patients if the pateint requests them. Obviously, you need to sign a release form, which the doctor's office can provide, but this is not a big deal. Once you sign the form, there is absolutely no reason that you should be prevented from obtaining your records. Despite what many office manager's may tell you, you do not even need to give them a reason. They are your records and you are entitled to them.

There are a few things you need to understand with medical records. The law gives the doctor or hospital 30 days to produce the records. So, just because they don't give them to you the moment you ask for them doesn't mean they are doing anything wrong. However, if they go beyond the 30 days, they are in serious violation of the law. In fact, every day beyond the 30 days is a seperate violation of the law which brings a seperate penalty.

Also, they are entitled to charge a "reasonable" fee for copying the records. If you only have a few pages they typically don't charge, but if you have a significant amount they are allowed to be paid the costs of copying them. What is "reasonable" is obviously open to interpretation.

If you are trying to get records on behalf of an adult relative things are a little different. You may need to show that you have power of attorney to obtain the records, even if you are the person's spouse. If you are trying to get the records of a deceased relative you will likely need to show that you have been appointed as the executor of the person's estate and that you are entitled to the records. However, many facilities will give the records to a spouse, without formal appointment, if you provide a copy of the death certificate.

If you are obtaining records because you are considering pursuing a medical malpractice lawsuit against a provider you should keip in mind a few other issues. First, the hospital or doctor will most likely NOT give you all of the records, even though you asked for them. It may not be a malicious attempt to prevent you from learning something, it may just be a misquided attempt to not overwhelm you with a ton of records. Either way, you should just assume that they are not giving you everything you ask for. Second, it may be advantageous to avoid letting the health care provider know that you are investigating a lawsuit. There have been cases were records are lost, altered, or added to, after people learn there is a possibility they might get sued.

Tuesday, February 5, 2008

Arbitration

Unfortunately, more and more patients are being asked to sign arbitration agreements when they go to see their doctor. It is not uncommon for patients to be completely unaware of what they are being asked to sign. The agreements are simply put in the stack of documents the receptionist gives to new patients. Unsuspecting patients see a complicated form with a bunch of legal terms on it and they assume it is just a standard form that doesn't warrant closer attention. They quickly scan the document to find the signature line and then move on to the next form. Little do they know they have just signed away an important constitutional right.

Now, if something goes wrong with their medical treatment they no longer have the option of having their case heard by a jury of their peers. They are prevented from going to court and must now have any disputes heard by a panel of professional arbitrators.

While arbitration can be a worthwhile method of alternative dispute resolution, it should not be forced upon patients in such a way that they do not even know they are agreeing to it. If arbitration is truly a better way to resolve disputes between patients and health care providers, then there is no reason to believe that the parties wouldn't reach that conclusion on their own, after an injury occurs. There is simply no justification for tricking patients into signing away constitutional rights before an injury has even occurred.

It should also be noted that arbitration forces patients to incur significant expenses that would not exist if they were allowed to try their case in front of a judge and jury. Arbitration panels are made up of three attorneys who each charge between $250 and $350 an hour. That means that an arbitration hearing could easily cost $15,000 to $20,000 just in arbitrator costs. This is an expense that would not exist if the parties were permitted to resolve the dispute in court.

Another serious problem with arbitration of medical malpractices cases in Utah is that the pool of possible arbitrators is very shallow. There is only a handful of people qualified and willing to do this work and the same names show up on nearly every case. The problem with this is that the insurance company representing the doctors gets to select one of the three arbitrators and has veto power over a second member of the panel. That means that if someone in this limited pool of potential arbitrators wants to continue to make a living, they cannot afford to make the insurance company mad. Insurance companies are only happy when they win. If an arbitrator renders a decision against an insurance company he can be sure that company will not agree to hire him again. While most, if not all, arbitrators are respectable and honorable, this sort of influence cannot be ignored. Individual patients simply do not have the power and influence of large insurance companies. The result is that plaintiffs usually lose in arbitration.

The good news is that if you have signed an arbitration agreement, and no injury has yet occurred, you can rescind the agreement. All you have to do is send a letter to the doctor or clinic where you signed the agreement and inform them that you are choosing to rescind it. It is against the law for a doctor to refuse to treat you simply because you do not want to participate in arbitration.

If you have signed an agreement and you think you already have a malpractice case it may still be possible to void the agreement. You should contact an attorney experienced in medical malpractice arbitrations and they can look at the agreement to make sure it complies with the law. If the form of the agreement is not what the law requires then it may be possible to pursue your case in court.

Tuesday, January 29, 2008

Contingency Fees

A contingency fee is where the attorney agrees to represent a client without requiring the client to pay the attorney any fees up front. In return, the attorney receives a percentage of whatever amount he is able to recover on behalf of the client. If the attorney is not able to win any money for the client, then the attorney does not get paid. With medical malpractice cases in Utah, the legislature has determined that 1/3 is the maximum contingency fee an attorney can charge a client for his services.

Much of the discussion in our country about "trial attorneys," and why they are a blight on society has to do with contingency fees. Insurance companies love to insight the public against trial lawyers by claiming that attorneys are only interested in making money off the misfortune of their clients. Contingency fees, they claim, are all the evidence one needs to support this claim.

However, the truth of the matter is that contigency fees make it possible for individual citizens to hold large corporations and insurance companies accountable for their actions. Without contingency fees the average person would not be able to pursue a lawsuit. Let me explain why.

Depending on the market in which you live, attorneys charge anywhere from $150 to $300 an hour for their services. If you are involved in a divorce or a criminal case, you will likely have to provide your attorney with a retainer of $3,000 to $5,000 just to get them to take the case. They then work against that retainer at an hourly rate. In other words, they do not do any work on your case until they know they have money in their account to compensate them for that work. Large corporations and insurance companies pay their attorneys the same way.

Attorneys that handle personal injury cases, on the other hand, do not put the same financial burden on their clients. Whereas a divorce or criminal case may be handled in a handful of hours, personal injury cases often take dozens, if not hundreds, of hours to resolve. If a patient injured as a result of medical malpractice were required to pay their attorney $25,000 up front, just to get the case started, they would likely have no choice but to walk away from the case. Not only would this leave the individual patient uncompensated for her injuries, but it would also leave society as a whole worse off. Many of the safety features and procedures we all benefit from are the result of lawsuits brought by individual citizens.

Contingency fees also serve the important purpose of discouraging frivolous lawsuits. Despite what tort reformers in legislatures around the country are saying, there are very few frivolous lawsuits because there is no money to be made on such cases. If an attorney knows that he will only get paid when he actually wins money for his client, he has not incentive to take on cases that have no merit. If contingency fees were eliminated then the only cases that would be litigated would be those with wealthy plaintiffs, regardless of whether the case was actually legitimate.

So, while 1/3 may seem like a lot of money, when one considers the financial risk assumed by the attorney, as well as the alternative of having to pay the attorney up front, it is clear that contingency fees are an important and vital part of our legal system in this country.

Thursday, January 24, 2008

Statutes of Limitations

In Utah the legislature has determined that two years is the length of time one has to sue a health care provider for medical malpractice. Whether or not this is fair is a discussion for another day.

While it may seem like two years is not a very long time, indeed this is shorter than the statute of limitations for other types of personal injury, there are some important caveats to this law that may lengthen the time period and need to be understood.

First, the two years does not begin to run until you discover, or should have discovered, the injury. When someone "should have" discovered an injury is obviously open to interpretation and depends on the particular facts of the case.

Second, regardless of when you discover, or should have discovered, the injury, the suit must be brought within four years of when the negligence occurred. That means if you discover the injury three years after it occured, you only have one year left to bring a suit.

Third, there are exceptions to the above rules if the case involves a foreign body that was left in a patient. If you discover that a foreign object was left inside you during surgery, for example, you have one year in which to bring a lawsuit if you have already passed the four year window from when the surgery occurred.

Fourth, there is another exception to the four year rule if the patient was prevented from discovering the negligence because the health care provider fraudulently concealed the misconduct. In that case you also have one year from the time you discover the injury to bring a suit if you are already passed the four year window.

Fifth, the statute of limitations does not begin to run for children until they reach the age of 18. This particular exception is very important to understand. Regardless of when your child was injured, it is still possible to seek a recovery for them if they are under the age of 18. Many lawyers do not understand this exception because the statute on the books actually says otherwise. However, the Utah Supreme Court has stated that children have until they are 18 to bring a lawsuit. For some reason, the Utah Legislature has chosen not to reflect this change in the statute.

Statutes of limitations can be very tricky and need to be looked at in the context of the facts of the case. If you have questions about whether it is too late to bring a lawsuit for medical malpractice it is best to consult with an attorney experienced in this area of the law.

Wednesday, January 23, 2008

Elements of a malpractice case

I get many calls from potential clients who are upset about what has happened to them in their doctor's office or at a hospital. Almost invariably, the conversation starts out with the statement, "I don't know if I have a case or not, but . . ." and then they proceed to tell me what happened.

I spend much of my time explaining to people what is required to have a viable medical malpractice case. It often turns out that the person does not have a case, but they usually feel better about having talked it through with an attorney.

In short, there are two basic elements to a malpractice case. First, the health care provider must have done something negligent. That is, they did something that no reasonable doctor or nurse would have done under the same circumstances. For example: they left a sponge in you during surgery, or they failed to see a nodule in your lung on an x-ray.

Secondly, the conduct of the health care provider must have caused some sort of harm. We must be able to connect the patient's injuries with what ever the doctor or nurse did wrong. For example, if a pharmacy sent you home with the wrong medication, that would be negligent. However, if you were lucky enough to realize the mistake before you took the medication, then no harm was caused by the pharmacy's conduct.

So, any evaluation of a potential malpractice claims starts with trying to satisfy these two elements. What did they do wrong and what harm did they case?

Another very important aspect to medical malpractice cases is the extent of the damages. This topic is covered in another post.