As the lead attorney of the Allen Medical Malpractice Team, I enjoy being able to answer questions and serve as a resource for the community. Of course, I especially enjoy helping people who are wondering whether they have legitimate medical malpractice claims. Each time I am contacted by a potential client, I am able to rely on my experience and judgment to counsel them about their potential claims, and each time I must make my own choice about whether or not a particular case should be pursued. Obviously, I have an obligation to limit my practice to cases with merit and to cases which I believe are likely to succeed.
How do I decide?
I have been practicing medical malpractice law for nearly 25 years now and have litigated cases in most medical specialties. I have also had the privilege of working with some of the leading medical experts in the country and in the world in my efforts to give my clients the best possible representation. Those decades of experience as a medical malpractice trial lawyer have not only enhanced my knowledge of medicine and how it is typically practiced, but they have also taught me to understand the economic factors involved in pursuing a malpractice claim.
The analysis of any case must begin with the very simple question: was the health care provider negligent? The mere fact of a bad, unexpected outcome does not mean there was negligence. The fact that another health care provider would have acted differently does not mean there was negligence. Even an actual mistake by the health care provider does not mean there was negligence. (Health care providers are human, too, after all. They are allowed to make mistakes.)
The health care provider is negligent if and only if he has acted unreasonably, i.e., done something no reasonable health care provider would have done under the circumstances. Whether an act (or failure to act) by a health care professional is reasonable can only be analyzed under the specific circumstances of the case. Of course, I am not allowed to testify to whether the health care provider acted reasonably, and neither is the patient. Only another qualified expert health care provider can testify to such matters. Oftentimes we spend the money necessary to hire such a highly qualified expert only to find out that what the treating health care provider did was not unreasonable. Just finding that there is not a viable case can cost a lot of money.
Assuming we can prove the health care provider acted negligently/unreasonably, we must also prove that the patient was injured by that negligence. After all, the patient usually has some problem before the health care provider even gets involved. If the health care provider was negligent, but did not make the underlying situation worse, there can be no medical malpractice case. But if the negligence actually made the patient worse off, there is probably a viable medical malpractice claim.
Again, though, this causal link between negligence and injury is not something that I or the patient may testify to. Only a qualified medical expert may testify to this cause and effect. Again, such an expert will charge for his or her time involved in the case to review the medical records and determine if the negligent act, in fact, caused real injury.
On these issues of negligence and causation, the patient bears the burden of proof. The health care provider bears no burden of proof in a medical malpractice claim. Obviously, investigating a case as I have described is a time-consuming and expensive job. If the case is viable, then proceeding with the claim is also a time-consuming and expensive job. Indeed, the expenses multiply rapidly, when witnesses must be deposed (questioned under oath) and both sides produce experts (usually in remote places) to testify to their respective positions on negligence and causation.
Because medical malpractice cases are so expensive, the decision to pursue one must be made very carefully. It is difficult – and therefore expensive – to demonstrate to a jury that a health care provider acted unreasonably. It is often at least as difficult – and therefore at least as expensive – to demonstrate that the negligence, rather than the underlying illness/injury, is what harmed the patient. No matter what, it is always expensive. Fortunately, the Allen Law Firm has the resources to advance those expenses on our clients’ behalf.
Filing a lawsuit against a health care provider is a serious undertaking and one that almost always takes a serious emotional toll on the health care provider. For the sake of the law, for the sake of the excellent reputation of the Allen Law Firm, and for the sake of my own conscience, I cannot pursue a case where its merit appears to be a “close call.” Moreover, because the Allen Law Firm takes responsibility for advancing the expenses on behalf our clients, I limit my practice to those cases which involve permanent, catastrophic injury — including but not limited to brain damage, death, paralysis, loss of limb, organ failure and disability. Because of our careful screening, I am able to pursue the cases of only a very small percentage of the potential clients who contact us.
The burden of proof imposed by the law, the scientific basis which must support a claim, and the expenses of pursuing a claim combine to make medical malpractice lawsuit very difficult and very expensive. Fortunately for our clients, the Allen Law Firm Medical Malpractice Team has the resources and the experience to overcome those obstacles and represent our clients successfully. We are proud of our results, but never rest on our laurels. When I represent a client, I know that person and their family are relying on me, and I take that responsibility very seriously. If you think you or a loved one may have a legitimate medical malpractice claim, please contact us.
About the Author: Malcolm “Mic” McConnell is the lead medical malpractice lawyer for the Virginia personal injury law firm of Allen & Allen. He has had success litigating cases from a wide variety of medical malpractice claims in Richmond, and across Virginia. He is included in The Best Lawyers in America and has repeatedly been voted by Virginia lawyers as a being among “Virginia’s Super Lawyers.”