Over the course of the last several years, we have seen a dramatic increase in the number of medical malpractice cases we handle. During that time, Attorney Cooper has successfully prosecuted cases against family medicine doctors, internists, emergency room physicians, radiologists, anesthesiologists, cardiologists, pediatricians, urologists, general surgeons, colorectal surgeons, orthopedic surgeons, neurosurgeons, obstetricians and gynecologists, nursing homes, hospitals and urgent care facilities. Our experience has taught us a few things.
The first thing it has taught is that the process for filing a lawsuit, which was designed to curtail frivolous lawsuits, is inherently flawed for several reasons. First, it requires us to present expert testimony from a doctor in support of our claims before we are allowed to pursue a case or be subject to sanctions by the court. No matter how clear the malpractice may seem to us as attorneys, we are not allowed to testify whether the doctor was negligent, and neither is the patient. Given what is known as the conspiracy of silence among doctors not to testify against one another, this task alone can be incredibly difficult even in the clearest of cases. Second, we have to obtain this expert testimony without any ability to conduct formal discovery, cross-examine witnesses, impeach credibility or present evidence (in the form of sworn testimony) to our experts outside of the medical records. Notwithstanding these limitations, we have learned to adapt our strategy to give our clients with legitimate claims the best possible chance at overcoming phase one.
The second thing our experience has taught us is that these cases are not for the faint of heart. Not only are they very expensive to pursue, but they are always taken extremely personally by the doctors and their lawyers. Every lawsuit we file takes a serious emotional toll not only on our clients and their families but also on the doctors. One of the consequences for a doctor who makes a payment in response to a patient’s claim for malpractice is that they must report the payment to the national practitioner data bank. Because this represents a black mark on a physician’s record, payments are not made willingly. Often times these fights have nothing to do with the merits of the case. Rather, doctors and their insurance companies hire the biggest law firms with the deepest pockets to file motion after motion against us challenging the case’s procedure in hopes of getting it dismissed on some type of technicality. It has been nothing short of amazing how far we have seen doctors go to support each other from accusations of malpractice, and it has taught us to stay on our toes.
The last thing it has taught us is that, for good or for bad, medical malpractice jury trials are heavily reliant on the presentation of expert testimony. Judges and lawmakers have decided that jurors as lay people do not have the training or the experience to understand complex issues of medicine without hearing from experts. Again, no matter how strong our personal beliefs are that a doctor committed malpractice, we can do nothing about it without retaining, first, an expert to testify that the defendant acted unreasonably, and second, usually a different expert to testify that the patient was injured by that negligence. Not only is this expensive, but there are also several snakes in the grass, doctors with their own agenda who appear competent and willing to testify only to take our money and tell us we do not have a case. By carefully vetting the experts we hire and building solid relationships, we feel confident that the clients who entrust us with their cases will get the type of objective analysis they deserve.
Based on all of these factors, the decision to pursue every medical malpractice case must be made very carefully. It is difficult, expensive and time-consuming to get by all of the challenges to even get an opportunity to argue to a jury that a doctor acted unreasonably. But the cause is an important one. And we feel our attention to detail and our hard work has allowed us to achieve solid results for our clients even in the face of all of the challenges thrown our way.