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My Doctor Says I Have A Case

Laurence M. Deutsch and Steven E. North

From time to time, when a prospective client calls our office, he or she tells us that a treating or consulting physician has said, “You have a case."

It may be true. An honorable physician may identify errors made in past treatment, bring them to a patient's attention, and even suggest seeking legal counsel. We always welcome the input of well-meaning doctors. However, more often than not when people tell us that their doctors believe they have a case, the “cases” in question are not such that our firm would bring them forward.

Here’s one reason why: Some physicians have an exaggerated sense of what actually constitutes a medical malpractice case because professional associations warn the them that, "People sue for everything." There are doubtless some frivolous lawsuits. Many are familiar with the "McDonald's hot coffee case, in which a woman purchased a cup of coffee at a McDonald’s drive-thru, spilled it on her lap, and was burned." A jury awarded her $3 million in punitive damages for the burns she suffered. There are sometimes, though rarely, equivalents in medical malpractice, e.g., people suing for things that truly could not be avoided or for truly minor injuries.

The vast majority of medical malpractice attorneys look not only for meritorious cases, but also those for which it can be legitimately proven that malpractice caused significant and, in most cases, permanent damages. Physicians who well-meaningly tell patients that they "have a case" are in most instances suggesting that that something was wrong in the patients’ prior care. Even if that is so, errors in prior care will not satisfy the requirements for a case worth the time, energy, and money it takes to fund an actual medical malpractice case through the courts of the State of New York.

Such cases can take hundreds of hours of attorney time and involve substantial disbursements for ongoing expert testimony, deposition transcripts, court filing costs, etc.

For a case to truly warrant the commitment to proceed with it as a legal matter, we need to see not only the merits of the case, but also a degree of damages supports these investments of time and disbursements as a real world matter. A physician telling a patient he or she "has a case," that physician has most likely not addressed these issues.

To some extent, this should be good news for many doctors. Minor injuries, even if resulting from medical malpractice, generally would not prompt lawyers such as ourselves or other sophisticated attorneys in this field to bring a case. We will, however, be fierce advocates for individuals truly injured in significant ways by medical malpractice.

It is often difficult for patients to know whether their injuries can be attributed to medical malpractice. However, most patients should know whether the consequences with which they are coping are serious. Therefore, while we do not expect patients to always know what caused their injuries, we do expect potential clients to be able to explain what consequences remain from what they believe was malpractice.

If a potential client comes to us with a serious injury that might be due to malpractice, we are very good at uncovering the facts and connecting the dots to make that determination. If we do find that serious injuries resulted from medical malpractice, there may indeed be a case that we will bring forth with all the seriousness it deserves.