A common misconception regarding medical malpractice cases is that the process of filing a lawsuit is quick. In television we see an act of negligence occur, a lawsuit be filed and a trial be conducted within one hour. Obviously, in real life, the process is different. In other areas of personal injury law, the commencement of a lawsuit takes place relatively soon after an individual retains an attorney. However, when investigating a potential medical malpractice case, the timeframe can take up to several months. In order to determine whether our potential client may have a valid claim is part of a complicated investigative process. At Queller, Fisher, Washor, Fuchs & Kool, our attorneys go through several phases of analysis before ultimately deciding whether there is merit to bringing a claim. Commencing a lawsuit against a medical professional is a serious matter and requires careful scrutiny to ensure that the proper theories of liability are pled in the Complaint and that we are prepared to fully litigate your case.
Phase 1: Initial Encounter with our Law Firm:
Typically the first step toward potentially filing a lawsuit occurs when you call our firm and speak with a paralegal. This initial encounter involves our specialized trained and experienced paralegal asking the crucial questions regarding your injury, when it occurred, and how it occurred. After speaking to you, the paralegal will consult with one of our medical malpractice attorneys as quickly as possible – usually within the first hour of that telephone conversation. The attorney will review the information along with the paralegal and make an initial determination as to whether there is potential merit. In some instances, our attorneys, based upon their vast experience, will immediately determine that there is not a basis to proceed with a lawsuit. If our attorney believes that there is even the slightest basis to proceed, the attorney will contact the client as expeditiously as possible and certainly within that first business day.
Phase 2: Consultation with our Medical Malpractice Attorney
Our medical malpractice attorney will contact you and briefly discuss your medical history and the recent events that have given rise to your inquiry. The information gained from this conversation will be sufficient enough to allow our attorney to determine whether a meeting would be beneficial. Sometimes it is at this juncture that our attorney will advise you that they do not believe that there is any sufficient basis to proceed. However, in the great majority of occasions, our attorney will arrange to have a personal meeting as expeditiously as possible. If necessary, our attorney will come to your home or hospital to have a consultation or make transportation arrangements for you to come visit our office.
At this personal meeting, you have the opportunity to meet and see one of our more senior medical malpractice attorneys. He or she will take a much more detailed history of the events that had previously transpired. Our attorney will fully explain the investigative process and the procedures involved in litigating a medical malpractice case. You will be afforded every opportunity to ask questions and there is no time limitation set on this initial consultation. Additionally, there is no payment of any fee for the initial consultation regardless of whether your case is accepted by our Firm. At the conclusion of the consultation, our attorney will request that you sign several documents. One of the documents is a Retainer Agreement. A Retainer Agreement serves a dual purpose. One is that it sets forth the fee arrangement with our law firm. Under the laws of the state of New York, medical malpractice attorneys are required to adhere to a strict sliding scale contingency fee agreement. This will be fully explained to you but essentially it governs the percentage of the recovery which the law prescribes for medical malpractice cases. The amount of the fee varies depending upon the amount of money recovered but in all instances, the total amount of the attorney fee can never be greater than 30% of the recovery.
The second purpose of an executed Retainer is that it gives our Firm the authority to act on your behalf as your attorney.
In addition to requesting that you execute a Retainer, we will also ask that you execute several medical authorizations and perhaps authorizations to obtain your employment records, school records and/or Income Tax/Social Security records.
Phase 3: Obtaining and Reviewing Medical Records
The determination of whether an individual’s claim justifies the commencement of a lawsuit involves an understanding of both the legal concepts and the medical issues. This field of litigation clearly relies heavily on the application of the law to complex medical issues. It is essential we obtain and review those medical records that would best enable us to make a determination as to whether we believe we can successfully litigate your case.
Sometimes this determination can be made based on a review of a doctor’s medical record or on a single hospital chart. However, sometimes the initial inquiry could involve obtaining medical records from several doctors, hospitals or medical facilities.
Our paralegals will aggressively execute the authorizations and follow up with the health care providers to obtain your medical records as soon as possible. Once the paralegal has obtained the necessary records, one of our medical malpractice lawyers will review the records. Based on his or her review, our attorney can determine what medical specialist is best suited to provide an expert opinion as to whether there was a departure from good and accepted practice that was a substantial factor in causing your injury. Based on this initial review, our attorneys will conduct both medical and legal research to present possible theories of recovery to an expert physician.
Phase 4: Expert Physician Review of the Medical Records
Assuming our attorneys now believe there is a basis for a successful medical malpractice claim, they will then consult with the appropriate medical specialist(s) to review the medical records. Additionally, an expert physician’s favorable review is required since New York law mandates that as a pre-requisite to filing a lawsuit, attorneys must certify that they have consulted with a physician who has advised that there is a basis for a valid claim.
The experts that we utilize to help determine the validity of a claim as well as verify the theories for recovery will always provide us with a clear honest opinions that they will be willing to swear to in a court proceeding.
As you can see, the process of determining whether you have a valid medical malpractice case involves an exhaustive investigative process. As indicated, this may take several months. However, the investigation is crucial. By preparing in advance of the commencement of the lawsuit, we can initiate the litigation with confidence and proceed quickly thereafter. By the time the lawsuit is commenced, we will be educated as to the intricacies of the case and be able to respond immediately to all discovery requests. This, in term, will actually make the litigation process move much more rapidly and show our adversaries that we are strong willed and supremely confident in our allegations.
We strongly believe that we can provide answers to you as to what happened and why you have suffered a complication or bad result resulting from your encounter with a health care provider. Although the answer may not always lead to the commencement of a lawsuit, our thorough investigative process will provide you with answers. And if those answers indicate that your injury or damage is a result of medical negligence, you can be assured that you will have the full force and power of our law firm litigating your case.
