Whenever there is an initial allegation of malpractice, the goal of each party is different, but an honest opinion of the merits of a case is important to both. Plaintiff attorneys want to know if their client has a case. Defense attorneys want to know if their client is at risk. This requires an appraisal of the facts of the case and a knowledge of current practice standards.
Both parties need an honest assessment of the situation, both of them to minimize financial risk. The plaintiff attorney wants not to waste time and resources pursuing a case with little or no chance of recovery, i.e., a case that is readily defensible despite what may appear to be errors in care. The defense attorney wants to know up front if the standard of care was violated to the point that the plaintiff is likely to recover damages, and to minimize those damages for his/her client.
The public, however, as well as many involved organizations, the media, and even a few attorneys, have a rather simplistic outlook. Their view is that plaintiff attorneys are just looking to make a quick buck and defense attorneys are protecting the practice of bad medicine. In my experience working with good attorneys on both sides, these attitudes are, more often than not, wrong. Nearly always, all that is sought by either party is an honest opinion.
Almost always, the decision hangs on the medical record. The old adage “If it isn’t documented, it wasn’t done” still carries much weight. Whether or not a substantive error has been made, both sides benefit from knowing that. Despite the fact that plaintiff attorneys would like every case to result in recovery of damages, and defense attorneys want their clients never to be at fault, most of the time the truth fails them both.
Mistakes happen. Compensation is often due. But not every bad outcome, or even every mistake, is malpractice.
Thus, there are two challenging aspects of medico-legal case review: 1) telling a plaintiff attorney that his/her client’s case is weak, and explaining why, and 2) telling a defense attorney that his/her client’s defense is weak, and explaining why.
That said, I have been uniformly impressed with the response from attorneys for both sides when my review indicates a weak case. The plaintiff attorney is grateful that he/she can explain to his client that what happened, though unfortunate, does not rise to the level of malpractice. The defense attorney is grateful that he/she now knows that a quick settlement may be the least expensive option. The system we have for settling these matters, cumbersome and imperfect as it is, generally works.
After over 35 years practicing emergency medicine and urgent care, as well as starting and being the first medical director of our hospitalist program and serving on quality monitoring committees, I have seen a lot of medical records. During my 25+ years of part-time work as a medical expert for both plaintiff and defense attorneys, I have used that experience to evaluate many other cases. And quite frequently the answer I must give those attorneys is not what they had hoped. But that is what makes our system work, and why I enjoy what I do.
As one attorney confided when I informed him that his case was weak, “All of my clients come to me after a bad medical result. The last thing they need on top of that is a bad legal result.”