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1/7/2010

What Is A Strong Malpractice Case - PART IV

Examples of strong cases.

Stomach surgery

A patient underwent surgery for removal of a portion of the stomach.
Anastomosis (joinder of parts) failed, and the patient required further
surgery with prolonged disability.

Unnecessary stomach surgery was improperly performed, requiring three
additional major operations, and a prolonged period of disability.

A patient underwent surgery for the repair of a duodenal ulcer. He
suffered duct damage during the procedure, and required four additional
operations. He was permanently disabled.

Surgical infections

An orthopaedic physician improperly reduced a fracture and failed to
take adequate precautions to prevent infection. When the infection
occurred, it was improperly treated. The patient suffered extended
disability.

A child suffered from a congenital defect in a lower extremity. Surgery
was performed without proper drainage, and the child developed infection
that went unnoticed. There was a delay in treatment, which necessitated
further surgery, and resulted in permanent damage.

Tracheostomy injury

A tracheostomy was performed at an incorrect level, then the tube was
improperly attended by hospital nurses. The patient suffered erosion of
the innominate artery, and bled to death.

Transferred without consent

A patient suffered from pancreatitis. While being transferred to another
hospital without consent, she suffered severe brain damage and remained
in a comatose condition until she finally died several years later.

Treatment delayed when patient not accepted

An attending physician failed to diagnose coronary occlusion and the
patient was not hospitalized. When the patient's condition deteriorated,
and he finally was ordered into a hospital, the hospital refused to
accept him. He was transferred to another hospital but did not survive.
?ù 25.6 Fee arrangement-Advancing costs.

Most medical malpractice cases for the plaintiff are handled on a
contingent fee basis. Ordinarily this ranges from 331/3 to 50% of the
recovery after costs are deducted "off the top."

Medical malpractice cases are such that usually there will be no
settlement, nor even negotiations toward settlement, until the lawsuit
has been filed and all essential depositions have been taken. In most
well-prepared cases, there is virtually a trial through the discovery
process before the actual trial in court. Therefore, "sliding scale"
contingent fees (i.e., 25% before the suit is filed, 331/3/% after the
suit is filed, 40% if the case goes to trial, 50% if the case goes on
appeal, etc.) are not in vogue. But, of course, this is a matter of
individual negotiation between you and your client, and should be in
accordance with your local custom and practice. Some states now have
statutes limiting contingent fees in medical malpractice cases. 2

After the first interview with your client, you may deem it necessary to
have him or her sign a contingent fee agreement, subject, of course, to
your right to withdraw should you find the case unmeritorious after
additional investigation.

This fee agreement may provide, if permissible in your jurisdiction,
that you have the right to advance costs on behalf of the client (and
the right to be reimbursed). Ordinarily, the victim of medical
malpractice has been plunged into a financial abyss, and is unable to
undertake the cost of the investigation and prosecution of the case. The
matter will move much more expeditiously if you are in a position to
advance the necessary expense of investigation and litigation. These
advances usually do not include any sums for medical care and treatment,
however, and are limited to the necessary expenses for medical reviews
and examinations, and costs of investigation, depositions and the like.
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