Chapter Three: Getting Representation

Many plaintiffs in medical malpractice cases have a difficult time finding an attorney to take their case. Unfortunately, this difficulty often has to do with the cost the attorney would face if they were to take the case rather than the actual merits of the case. Put more precisely, the cost to take a medical malpractice case frequently far outweighs what an attorney would earn back if they were to win it, creating a financial barrier between attorneys and many potential plaintiffs which may be labeled the cost problem.

Most medical lawsuits are accepted under a contingency fee arrangement (i.e. the attorney receives a portion of the settlement or court awards if, and only if, the plaintiff wins) because most plaintiffs are individuals with limited financial resources who cannot afford an hourly fee arrangement. The contingency fee arrangement common to medical lawsuits plays a role in the cost problem by establishing the following financial equation for attorneys.

The attorney’s portion of the settlement or court awards given to the plaintiff – the cost of prosecuting the case = the net financial result of the case

What this equation tells us is that, in order for the prosecution of a medical malpractice case to be financially feasible for an attorney, the attorney’s portion of the settlement or court awards given to the plaintiff must be sufficiently larger than the cost of prosecuting the case. But this isn’t the real source of the cost problem. The real source of the cost problem can be traced back to what usually gets plugged into this equation.

Prosecuting a medical malpractice case includes investigation, evaluation by experts, deposition testimony, getting documents, reviewing documents, travel, and hundreds of hours of attorney work. And the cost of these things, all of which an attorney pays out of pocket, is high. We at Moseley Collins law frequently spend around $100,000 per medical malpractice case which increases to $250,000 if the case goes to trial.

Given the high cost of prosecuting medical malpractice cases, attorneys can only take on those cases that have large expected damages because, in their absence, the portion they would receive of the settlement or court awards given to the plaintiff would not be large enough to make prosecution financially feasible.

To make matters worse, some states also have laws which unfairly place a cap on a plaintiff’s damages, resulting in it being even less likely that the finances involved in a medical malpractice case will be feasible for an attorney. For example, in California, tort reform in the 1970s-1980s resulted in the State Legislature capping non-economic damages – damages for pain, suffering, inconvenience, disfigurement or other impacts – at $250,000, no matter how badly a doctor or hospital hurt you.

Each state has its own rules. But in California, the California Medical Injury Compensation Reform Act (a.k.a. MICRA), has maintained this cap for nearly 40 years and has remained unchanged, even with the rising costs of every aspect of litigation – not to mention inflation.

Caps on pain and suffering damages may seem high enough to still allow for many medical malpractice cases to be financially feasible for attorneys. Sadly, however, this isn’t the case. As mentioned above, the cost of prosecuting a medical malpractice case can be as high as $250,000. So, $250,000 in pain and suffering damages, though it may seem like a lot of money, will often not be enough to make it financially feasible for an attorney to prosecute a case. At least in states like California, what usually is needed to bump the expected damages to a number high enough to make a medical malpractice case financially feasible for an attorney is high economic damages (e.g. past wage loss, future wage loss, future medical care, past medical care, etc.).

Another sobering fact is that the importance placed upon economic damages by MICRA disproportionately hurts those who have little to no income, such as children, the elderly, and full-time parents. Because these people do not work, they have little to no economic damages from lost income, resulting in their damages usually maxing out at only $250,000.

A recent study published in the Vanderbilt Law Review provides strong evidence for the existence of the cost problem facing medical malpractice plaintiffs. Of the attorneys who participated in the study, over 75% said that they reject more than 90% of the medical malpractice cases they come across primarily due to a combination of high litigation expenses and insufficient damages.

On a related note, another reason why medical malpractice plaintiffs can have difficulty finding an attorney to represent them is that, upon being contacted, attorneys who do not specialize in medical malpractice often take too long in referring the case to those who do, resulting in the statute of limitations applicable to the case expiring before the plaintiff can secure representation. Most general personal injury attorneys do not wish to take on a medical malpractice claim. They think the cases are just too expensive and too difficult.

Despite the often prohibitive costs of medical malpractice litigation and the documented reluctance of attorneys to take these types of cases on, there are ways that you as a plaintiff can “know before you go,” and increase your odds of getting a qualified attorney to take your case.

If the treating physician tells you that he or she made a mistake, write down when and where the physician said so, and exactly what was said. Request copies of your records from the hospital or treatment facility. There may be a modest printing charge, but you might avoid this cost and expedite the process by asking the staff if they can put the documents on a thumb drive that you supply. Key records include operative records, anesthesia records, emergency room records, discharge records, all imaging (e.g. x-rays, CT scans, MRI images), and all progress notes from doctors.

In addition to your medical records, organize all of your other records related to the case. These may include photos of your injuries, medical bills, and notes on communications. A traditional binder with tabs works fine.

When you organize your documents, you are familiarizing yourself with your own case. This will be helpful for getting an attorney to consider taking your case for two reasons. First, attorneys are busy. They have offices to manage and existing clients to serve. To make the most of limited time, you want to be able to make the most convincing presentation possible when speaking to an attorney. Second, documents are the cornerstone of your case. What is in your binder (or on your thumb drive) now will be examined by experts, and likely end up as one of your lawyer’s exhibits in an Offer of Settlement or Motion for Summary Judgment later.

You should also research your case and symptoms online. You can find a wealth of information that will help you understand your case and the important issues it presents.

Once you have your documents prepared, you can begin your search for an attorney to take your case. Keep in mind, of course, that your time limit according to the statutes of limitations is still running in the background. Don’t wait too long to get proper documentation before calling an attorney. With that disclaimer aside, and your hypothetical documents prepared, you can search for an attorney online. The facts of your case can be a guide as you search the internet. Try to find attorneys with listed cases or listed practice specialties that are a match with your case. For example, if you live in Sacramento, California, and want to litigate against a doctor for failing to treat an infection that results in septic shock, look for something like, “failure to treat sepsis medical malpractice attorney Sacramento.”

Once you have made initial contact with an attorney, these steps will help you convince the attorney that your medical malpractice case is one that they should take:

1. Know what the attorney is looking for. In a medical malpractice case, the attorney is conducting a cost-benefit analysis and looking for strong indications that the case could be a winner. These include an obvious mistake; serious, permanent injuries; clear causation, and collectability. Because you have done some research concerning your case and hopefully have your documents organized and ready before you make the call, you will be ready to answer questions related to these categories and tell your story in a way that highlights the strengths of your case in each category.
2. If the attorney says no, find out why. This will help you refine your presentation for the next attorney call.
3. Don’t give up if they say no. The reason could have nothing to do with you. The attorney may not be an expert in your legal issue, may not have the time, or may not have the staff. Keep telling your story until you find an attorney who is able to take on your case. Plan to start with who you think is the best attorney. Then go to the next one. We’ve taken (and won great recoveries for) plenty of cases that other attorneys have declined. I know that it can be difficult to persevere through the suffering you’ve endured as well as to fight for justice, but please don’t get discouraged quickly.
4. If the attorney does not say yes or no, be polite, but follow up. If the call does not end in a definitive yes or no, explain to the attorney that you are concerned about the statute of limitations. Ask the attorney what the next steps will be, and when you can follow up.
5. Be a partner in your case. Remember, you are helping to build your case. Take more good notes with the attorneys you speak with. Be a partner in your own representation and a resource to the attorneys. The efforts you make – from little things like researching your injury or medical issues online and organizing your medical records to more complicated tasks like writing a narrative of what happened to you if requested by your attorney – saves attorneys time, back-office resources, and ultimately, money. Because the financial feasibility of a case is one of the main reasons attorneys reject medical malpractice cases, the time you save the attorney ratchets up your value as a client.

If you follow these tips, you will very likely increase your odds of finding an attorney to take your case. A combination of these strategies will allow you to present yourself as a powerful ally and show the attorney that, even though he or she is the one investing the money, you are invested in your case in other meaningful and significant ways.

MICRA, Consumer Attorneys of California, (last visited Sept. 17, 2019).

Joanna Shepherd, Uncovering the Silent Victims of the American Medical Liability System, 67:1, Van. L. Rev., 151, 154, (2014).